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The Right Hoiwuiahle Sir Dinshah Miilla 



TABLE OF CONTENTS 


PAOE 

CHAP. I. — Operation of the Hindu Law . . f . . . . . . 1 

CHAP. II. — Sources op Hindu Law . . . . ^ . .. o • • • 9 

CHAP. III. — General Principles of Inheritance . . . . . . 18 

CHAP. IV. — Inheritance to Males — Mitakshara School . . . . 2.5 

CHAP. V. — Female Heirs . . . . . . . . . . . . . . 76 

CHAP. VI.. — Succession to Males — Bombay Bchool . . . . . . 82 

CHAP. VII.. — Inheritance to Males — Hayabhag.a School . . . . 88 

CHAP. VIII. — Points op Difference between Mitakshara and 

Dayabhaga Succession . . . . . . . . . . 99 

CHAP. IX. — Exclusion feo.m Inheritance and Partition . . . . 100 

CHAP. X. — “Woman's Property' : Part I — Stridhana . . . . 108 

(1) Stridhana according to the Syihttis, Commen- 

taries AND Judicial Decisions (ss. 112-123) 108-123 

(2) Special Features of Stridhana (s. 124) . . 123-124 

(3) Enumeration of Stbidhan.a (ss. 125-140) . . 124-134 

(4) Rights of a Woman over her Stridhana 

(ss. 141-144) 134-138 

(5) Succession to Stridhana (ss. 145-157) . . . . 138-154 

(6) Rules common TO ALL THE Schools (ss. 158-165) 154-157 

CHAP. XI. — Woman’s Property : Part II. — Property inherited 

BY A Woman .. .. .. .. .. 158 

(1) Succession to Property inherited BY Females 

(ss. 168-173) 159-164 

(2) Powers of Female Heirs over inherited Pro- 

perty (ss. 174-201) . . . . . . . . 165-223 

(3) Remedies against Unauthorised Acts op 

WIDOYVS (SS. 202-211) . . . . . . . . 223-232 

CHAP. XII. CoP.YRCENERS AND COPARCENARY PROPERTY MjTAK- 

SHARA Law , . . . . . . . . . 233 

(1) Coparceners (ss. 212-217). . .. .. .. 233-239 

(2) Coparcenary Property (ss. 218-234) . . . . 240-270 

(3) Management and Enjoyment of Coparcen.ary 

Property (ss. 235-254) . . 270-301 

(4) Alienation of Coparcenary Property 

(SS. 255-257) 301-303 

(5) Alienation of Undivided Coparces.ary' In- 

terest (ss. 258-266) . . . . . . . . 303-323 

(6) Setting Aside Alienations (ss. 267-271A) . . 323-335 

CHAP. XIII. — Coparceners and Coparcenary Property — Daya- 

BHACA Law . . . . . . . . . . 33(f-342 

CHAP. XIV.. — Debts — M irYKSHAR.Y Law . . . . . . . , . . 343 

(1) Livbility of Separate Property for Debts 

(s. 288) 344-345 

(2) Undivided Coparcener's intehest when ® 

Liable fob his Debt (s. 289) . . , . ... 346-347 

(3) Liability of joint Family Property fob 

Father’s Debts (ss.‘^90-301) 


347-387 



VI 


, T])e law relatmg to adoption followed by divesting of 
property lias given ns another important decision of the Juci,icial 
Coniinillee — Ananta Bhikkappa v. Slianker Ramachandi'a 
(1943) 70 I, A. 232 — and several decisions in Bombay and 
Nagpur? 

Tlie rights of illegitimato sons of a junior member to 
maintenance out of an impartible estate is the subject of a 
decision by the Privy Cmmcil in Raja Velugoti Kumar Krishna 
Bahadur v. Rajendra Rao (1942) Mad. 419. 

The provisions of tlie Hindu 3Iarried Women’s Right to 
^Maintenance Act^ 1946, have been incorporated in the text. 

The delay in bringing out this edition for which there is 
urgent need is partly due to war conditions and I have been 
asked to express regret that it has become necessary iso raise 
the price of the book owing to the high cost of production. 

The editor desires to record his grateful appreciation of the 
assistance rendered to him by Mr. Vepa P. Sarathi, Advocate, 
Madras High Court, and Mr. J. C. Bhat, Advocate, Bombay 
High Court. 


V. R. 


June 1946. 



PREFACE TO THE TENTH EDITION. 


tTn the preparation of this edition, the editor has attempted 
td state the law as modified or supplemented by the decisions 
extending over a period of seven years. The most important 
of these are those relating to the Hmdu Law of Inheritance 
(Amendment) Act, 1929, and the Hindu Women’s Right to 
Property Act. 1938. 

Under the former Act the question whether a half-sister 
was included in the term " sister ” w'as at first the subject of 
conflictmg decisions mitil Full Bench decisions settled the 
conflict in the particular High Courts. However, the Privy 
Council finally settled the matter in P. M. Karuppay animal v. 
Meenammal (1943) Mad. 235, holding that the half-sister is 
also an heir imder the Act but is postponed to a fuU-sister. 
In another case the Judicial Committee {Mt. Sahodra v. Ram 
Babu (1942) (19 I. A. 145) held thaL the Act applied even to 
Provmces where the sister and otnfepfe yrere not formerly heirs. 

The Hmdu Women's Right to Property Act. 1938, has 
been held by the Federal Court to be ultra vires as to agricultural 
property. There are other important decisions on the Act 
though some of them require furtlier consideration. 

The law relating to Bandlm Successioii continues to give 
rise to conflicting decisions. The Bombay High Court agrees 
with the Allahabad High Court and differs from the Madras 
High Court in the mterpretation of Ramchandra v. Vinayah. 
The Madras High Court hi a Full Bench decision affirmed its 
foriner decision that the Bandhushqi is not confined to. four 
families and to four kinds of descendants as held by the 
AUahabad High Court. 

The law relating to accumulations by a widow has received 
further development by recent decisions of the Privy Council 
and it was found necessary to effect alterations in the texh. 

The decision in Har Naraini Kunivar v. Sajjan Pal Singh 
(1940) All. 719, is important. It applies an earlier decision 
of the Board, Amrit Narayana Singh v. Gaya Singh (1918). 45 
Cal. 590, which by inadvertence was omitted in the former 
editions of this jvork. 



PRINCIPLES 

OF 

HINDU LAW 


BY 

The Right Honourable SIR DINSHAH FARDUNJI MULLA, Kt., 

C.I.E.^ M.A., LL.D. 


FOB SOME TIME LAW MEISIBER OF THE COUIfCIL OF THE GOVEBNOE-pBNEBAL OF IHDIA 
AND JUDOE OF THE HIGH COURT OF BOMBAY ; HONOEABY BENCHE^^^OF LINCOLN’S 
JNN ; TAGOgE LAS-JJeoTUBER, 1929 JOINT EDlTOB, “ POLLOCK So KULLa’S 
rSDIAN CONTRACT ACT ” AND “ MULLA AND PBATT’S INDIAN STAMP ACT ” ; 
AUTHOR OF “ COMMENTARIES ON THE CODE OP CIVIL PROCEDURE,” 

“ rSlNCIPLES OF MAHOMB'blN' LAW,’ COMMENTARIES ON THE 
INDIAN REGISTRATION ACT, ETC. 

TENTH EDITION 


BY 

Sir VEPA KAIHESAM, Kt., B.A., B.L. 

FORMERLY JUDGE OF HIS MAJESTY’S HIGH COURT OF 
JUDICATURE AT MADRAS 


Price Rs. 18 (net). 


CALCUTTA; 

THE EASTERN LAW HOUSE LTD. 

BOOKSELLERS AND PUBLISHERS 

1946. 


rights induing right of Iraiwlatioa reserved. 



PRINTED BY R W PEA.RCE AT THE TIMES OF INDIA PRESSv BOMBAY 

AND 

PUBLISHED BY EASTERN LAW HOUSE. LTD . GANESH CHUNDER AVENUE CALCUTTA 



TO THE MEMORY 
OF 

THE TATE SIR BASIL SCOTT, Kt.. 

FORMERLY CHIEF JUSTICE 
OF 


THE HIGH COURT OF JUDICATURE AT BOMBAY. 




TABLE OF CASES 


A 

Abaji V. Miikta, 441. 

Abdul'Aziz v, Appaya.sami, 307. 

V. Nirma, 39. 

( 'adur V. Turner, 032. 

Huseiii Khan v. Bibi Sona Dei'o, 

10 . 

Hye V. Mr. Mahomed, 049. 

Karim v. Batlrudeen, 425. 

V. Karmali, 032. 

■ V. Ram Kishore, 348, 358. 

Majid Khan V. Saraswathibai, 

277. 

Rahman v. Gajendhralal, 388. 

Sakur v. Abubakar, 633. 

Sattar Istoail v. Abdul Hamid 

Sait, 033. 

Abdulla V. Ram Lai, 194. 

Abdur Rahim v. Narayan Das, 514. 
Abduiahim v. Halimabai, 15, 030, 033. 
Abhai Churn v. Mangal, 430. 

V. Mangal Jana, 98. 

Abhaidat Singh v. Ragho, 263. 
Abhayohandia v. Pyari Mohun, 274, 270, 
392. 

Abhirain v. Shvania Charan, 495, 500, 
501. 

Abilakh v. Bhekhi, lOi. 

Abinash v. Havinath, 220, 227, 229. 
Abraham v. Abraham, 5, 7. 

Achal Ram v. Udai Partab, 042. 

Achratlal v. Chimanlal, 002. 
Achutanand v. Surjanarain, 287, 380 
Achutaramayya v. Ratnajee, 385. 

Achyut V. Ramchandra, 045. 

Adambhai v. Allarkhia, 633. 

Ademma v. Hanuma Reddi, 29, 01, 07. 
Adhar Chandra v. Nobin Chandra, 249. 
Adhibai v. Cursandas, 013, 018, 620. 
Adhiranee v. Shona Malee, 603, 623. 

Adi Deo V. Dukharan, 412. 

Adikesavan v. Gurunatha, 281. 

Adit Narayan v. Mahabir Prasad, 28, 48, 
50, 59, 09. 

Adiveppa v. Tontappa, 214. 

Adivi Suryaprakasarao v. Nidamarty 
Gangaraju, 650. 

Adm. Gen. rff Bengal v. Lalbihari Dhar, 
‘'407. 


A — contd. 

Adm.-Gen, of Madras v. Anandachari, 
528, 529, 531. 

Adrishappa v. Gurushidappa, 389.' 
Adurmoni v. ChowdRry, S47. 

Adusumilli v. Adusumilli, 544, 545. 
Advi V. Fakiraiipa, 570. 
Advocate-General v. Damodar, 491. 

V Jmibp.bai, 630, 031, 

032, 033. 

V. Karmali. 472, 030, 

032. 

Advyappa v. Rudrava, 41, 100, 150. 
Aghore Nath v. Grish Chunder, 278. 
Ahmedbhoy v. Cassumbhoy, 394, 630, 
631. 

Ahned v. Gliisia, 456. 

Aisha Bee Bee v, Noor Mohammed, 633. 
Aisworyananda] v. Sivaji, 133. 
Aiyyagari v. Aiyyagari, 303, 310. 
Ajabsing v. Nanabhau, 583. 

Ajitkuraara Mitra v. Tarubala Dasi, 470. 
Ajodhia Prasad v. Mt. Sanjhari Kiier, 
197. 

Ajoodbia v. Kasee, 244. < 

Ajudhia v. Ram Sumar, 49. 

Akhoy Chunder v. Kalapahar, 563. 
Akhanna v. Venkayya, 174. 

Akkaniia v. Venkayya, 174. 

Akliu Pralhad v. Ganesh Pralhad, 610. 
Akoba I,axman v. Sai Genu, 80. 
ikkora Suth v. Boreani, 39. 

Akshay v. Hari, 429. 

■ V. Hari Das, 12, 88, 98, 336. 

Alabi V. Mussa, 442. 

Alagappa v. Vellian Chetti, 293, 296, 297. 
AJamelu v. Balu, 41, 413. 

Alangamonjori v. Sonamoni, 455. 

Alapati Anandrao & Ors. v. The Presi- 
dent, Co-operative Credit Society, Pe- 
datadipalli & Ors., 384. 

Ali Hasan v. Dhirja, 445. 

— Saheb v. Shabji, 645, 046, 647. 

Alla Venkataramanna v. Palacheila 
Mangamma, 323, 371. 

Allah Diya v. Sana Devi, 160, 191. 

Alluri Venkatapathi Raju v. D. Venkata- 
narasimha Raju, -421. 

Amar Chandra v. Sebak Chandra. 368. 



TABLE OF CASES. 


'KU 


A — contd. 

Amar Chandra v. Saradamo^ce, 251. 

Dayal v. Har Pershad, 304, 324, 

325. 

Amarendra Mansingh's Case, 554. 

: Maiisingh v. Sanatan Singh, 

554, 555, 557. 

Amarjit v. Algu, 140. 

Amarnuth v. Achhan Kuar, 189, 190, 210. 
Amava v. Mahadgairada, 551, 554, 657. 
Ambabai v. Govind, 656, 657. 

V. Keshav Bandochand, 46, 84. 

Ambaidas v. Jijibhai, 80, 86. 

Anibalal Khora v. Bihar Hosiery Mills, 
Ltd., 266. 

Ambika v Jamuna Prasad, 35. 

Prasad v. Chandramani, 192. 

Ambubai Ammal v. Said Bai Ammal, 606. 
Amerandra v. Bananiali, 642. 
Amirthammal v. Valliniayd Ammal, 518. 

Ors. V. Vallimayil 

Ammal, 106. 

Amirthavalliammal v, Siromani Ammal, 
598. 

Ammakaniiu v. Appii, 005, 618. 

Ammani Amma v. Periasami Udavor, 
1S7. 

Ammamima v. Kadaiida Bao, 486. 
Amolak v. Chandan, 315. 

Amraj Singh v, Shambu Singh, 284. 
Amrit Jfarayan v. Gaya Singh, 166, 167. 
Amnta Knmari v, Lakhinarayan, 49. 

Lall Y. JIanick I.all, 400. 

Amrito Lall v. Sumomoiu (25 Cal. 662), 
480. 

— V. Surnomoye (24 Cal. 589), 

480. 

Y. Surnomoye (27 Cal. 996), 

480, 539. 

Amulya v. Kali Das, 451. 

■ V. Kalidas, 458. 

Anand Chandra v. Pran Kisto, 402. 

Prakash v. Narain Das, 317. 

Rao V. Annapurnabai, 220. 

Ananda Bibee V. Nownit Lai, 50, 78. 

Chandra y. Braja Lai, 510. 

; Rao Y. Mt. Annapurnabai, 211. 

Anandi v. Hari, 43. 

Anandibai y. Hari, 421. 

V. Kashibai, 554. 

Anandrao v. Administrator- General of 

Bombay, 449. 

V. Vasantrao, 234, 249, 315. 

Anant v. Gopal, 271, 273. 


A — contd. 

Anant v. Shankar, 55^ 

Bikkappa v. Shankar Raiua- 

ohandra, 558. 

GoYind Y. Dnyanesliwar Eal- 

krishna, 555. 

V. Tukaram, 344. « 

Lai V. Ram Adhar, 28. „ 

Narayana Singh v. Gaya Singh, 

166. 

Ram V. Channu Lai, 293, 297. 

V. Collector of Etah, 286, 324, 

325, 328. 

I Singh V. Durga Singh, 43. 

I Auanta v. Damodhar, 412. 

I Xilkanth v. Lala Rupnaravan, 

I 214. 

Y. Ramabai, 102. 

Anantakrisbna Shastri v. Prayagdas, 499. 
An.antba v. Nagamuthu, 496. 

i Bikkappa v. Shankar, 578. 

i V. Naga JIuthk, 445. 

! Ananthachari v. Krishnaswami, 428. 

I Anantliaya y. Vishnu, 607. 

I Anantu v. Ram Prasad, 373, 376. 

Anath Xatli y. JIackintosb, 402. 
Angammal v. Venkata, 100, 134. 
Angamuthu v. Varatharajulu, 213. 

I Angamutu v. Kolandavellu, 295. 

I Angraj v. Ram Rup, 304, 324. 

I Anjirabai v. Fandurang, 653. 

: Aiinabhat y. Shivappa, 349, 385. 

I Aiinada v. Atul, 198. 

V. Gour Mohan (48 Cal. 536), 

i 166. 

' Xaray^ana Singh v. Gaya .Singh, 

166. 

Mohan v. Gour Mohan, 166. 

I Prasbad v. Ambica Prashad, 

I 617. 

; Aniiaj’i v. Chandrabai, 484, 486. 

V. Xarayan, 511. 

V. Ragubai, 645. 

Annamalai v. Murugasa, 274. 

V. Muthusamy, 594. 

Chetty Y. Subramanian 

X'hetty, 261, 263. 

Annammah v. Mabbu Bali Reddi, 578. 

I Animpagauda v. Sangadigyapa, 596. 
j Annapurnamma v. Appayya, 546. 
Annapurni v. Forbes, 671. 

Annasami v. Ramkiishna, 507, 510. 
Annaya v. Ammakka, 498. 

Annayyan v. Chiiman, 37. 

I Antaji v. Datlaji, 581. 



TABLE OF CASES. 


xm 


ArrrCOntd. 

Anukul Chadra v. Surendra, 102, 
Animchand v. Kisheii, 341. 

Anundee v. Khedoo Lai, 41G. 

Anup Karaj’an v. Mahabir Prasad, 208, 
Apaji V. •Cangabai, 618. 

*v. Ramchandra, 393, COO. 

Aparna v. Shree Sliiba Prasad, C3C. 
Appa \’. Ranga, 315. 

Appaji V. Mohanlal, 83. 

Appalasuri v. Ivannamma, 40. 

Appan Patra v. Srinivasa, 250. 

Appandai v. Bagubali, 28, 65. 
Appasami v. Nagappa, 510. 

Appibai v. Khimji Coovorji, 529, 611. 
Appovier v. Rama Subba, 238. 

— V. Rama Subba Aiyan, 270, 

406, 412, 414, 417. 

Approvier v. Rama Subba Aiyan, 433. 
Apya Shethya v* Ramnakka Apya, 559. 
Armugham v. Muthu, 349, 375. 

Arumuga v. Vrraraghava, 332. 
Arutnugam v. Duraisinga, 594. 
Arumugha C'hetty v. Ranganathan 
Chetty, 402. 

Arunachala v. Vythialinga, 295. 
Arunachalam v. Sabaratnam, 318. 
Arunachellam v, Venkatachalapathi, 498, 
499, 

Arunagiii v. Ranganayaki, 42, 155. 

Asa Ram v. Karam Singh. 380. 

Asad Ah v. Haider Ah, 628. 

Ashabai v. Haji Tyeb, 144, 630, 632. 
Ashanullah v. Hali, 390. 

Asharam v. Manager of Dakore Temple 
Committee, 513. 

Asharfi v. Rup Chand, 058. 

Kunwar v. Rux) Chan<l, 538. 

Ashui'fi Singh v. Bisesrvar, 488. 

Ashutosh V. Chidam, 179, 181, 183. 

V. Doorga Churn, 494. 

V. Durga, 477. 

V. Lukhimoni, 629. 

Asita V. Nirode, 572. 

Mohan T. Nirode Mohan, 1, 507, 565, 

663, 664, 665. 

Atar Singh v. Thakur Singh, 263. 
Athling.a Goundcr v. Ramaswami Goun- 
der, 397. 

Atma Ram v. Banku Mai, 518. 

,v. Baiikumal, 297. 

Atmaram v. Baji Rao, 32. 

V. Madho Rao, 566. 


A — concld. 

Atmaram Rao v. Bhupandranabh, 315. 

V. Vaman, 442. 

Atrabannessa v. SafatuUah, 054. 

Atul V. 8anyasi, 125, 484, 480. 

Krishna Roy v. Lala Nandaji, 

349, 309, 410. 

Audh Ivnman v. Chandra Dai, 41. 
Aulakhi v. Jai Kishan, ^8. 

Auinirtolall v. Rajoneekant, 23, 41. 
Aurabmda Nafch v. Mauorama, 222. 
Authikcsavalu v. Ramanujam, 142, 519, 
520, 5-28. 

Avdes Kumar v. Zakaul Hussain, 296. 
Awadh V. Sitaram, 395. 
Ayiswavyanandaii v. Siv'aji, 38, 141, 505. 
Ayyavu v. Niladatchi, 572. 

B 

Ba Sappa v. Sidramappa, 651. 

Baba v. Timma, 303, 399. 

Bab.ijj V. B.alaji, 162. 

V. Jivaji, 252. 

V. Ilasbibai, 412. 

V. Vasudev, 307. 

Babajirao v. Lasmandas, 497, 498. 
Babanna v. Parava, 413, 421. 

Baboo Beer Pertab v. Rajendar, 243. 

Bodhnarain v. Omrao, 102, 104. 

Boorga Parsad r. Kundun, 412. 

Hurdcv Narain v. Ruder Perkaah, 

306,' 367. 

— Kamcshwar Pershad V. Run 

Bahadur, 281. 

Baboo Nand Coomar v. Razeeooddeen, 
246. 

• Babu V. Bala, 292. 

V. Ratnoji, 578, 579. 

Bhai Girdhar Lai v. Ujamlal 

Hargovindas, 262. 

Bhagwau Din v. Gir Har Sarup, 513. 

Lai V. Babu Lai, 267. 

V. Nanku Bam, 28, 50, 54, 528. 

— V. Satya Narain Prasad, 285. 

Motising v. Durgabai, 14, 16, 537. 

Ram V. Musammat Kokla, 612. 

Rani v. Bajendra Baksh Singh, 483. 

Singh V. Bihari Lai, 371. 

■ V. Beharilal, 371. 

V. Rameshwar Baksh, 203. 

Babui Rita v. Babu Pnran, 43. 

Babulal v, Manik Lai, 190, 203. 

Babuna v. Jagat Narain, 401. 

Baburao v. Tukaram, 203. 



XIV 


TABLE OF 


Bachcha v. Gajadhar, 654. 

Bachha v. Jugmon, 150. 

Bacliclian Siagli v. Kamta Prasad, 694. 
Baehiraja v. Venlratappadu, 159. 
Bachoo V. Mankorebai (29 Bom. 61), 394. 

V. ^ (31 Bom. 373), 

250, 257, 539, 557. 

Bada v. Hussu Bhai, 635. 

Badam v. Madho Kam, 324, 320. 

Badri Naravan v Mahant Kailash Gir, 
515. » 

V. Narayen Singh, 222. 

Nath V. Hardco. 35. 

Prasad v. Madaii Lai, 348, 370. 

Boy V. Bhugnat. 401. 

Bageshar Hai v. Mabadei'i, 403. 
Bahadur Singh v. Girdharlal, 330. 

V. iiloliar Singh, 22, 166, 

205. 

V. Karu Biihadur, 203. 

204, 207. 

Bahadursingh v. Girdharlal, 206. 
Bahima Saraswathi Kuer v. Bahuria 
Sheoratan Kuer, 020. 

Bai Amrit v. Bai llanik, 592, 600. 

• Baiji V. Bai Santok, 033. 

Bapi V. Jamnadas, 491. 

Baya v. Natha, 618. 

Devkore v. Sanmukhram, 625. 

Dhanlaxmi v. Hariprasad, 4(i4. 

Dhondubai v. Laxmanrao .582, 

Diwali V. Moti, 522, 529 

V. Patel Bechardas, 483. 

Gulab V. Jiwanlal, 524, 667, 

V. Thakorelal, 448. 

Jaya v. Ganpatram Kalidas, 620. 

Jiyi V. Narsingh, 533. 

Kanku v. Bai Jadav, 219, 605. 

Kashi V. Jamnadas, 524. 

Kesserhai v. Hunsraj, 13, 140. 

Khushal v. Lakhma, 442. 

Mamubai y. Dossa, 443, 454. 

Manchha. v. Narotamdas, 259. 

Mangal v. Bai Kukhmini, 606, 

Jlani V. Usufali, 383. 

Nagubai r. Bai Monghibai, 36, 609, 

610. 

Nani v. Chunilal, 562. 

Narmada v. Bbagwantrai, 127, 

143. 

Parson v. Bai Somlj, 156. 


CASES. 

' B — coptd. 

Bai Parvati v. Dayabhai, 20Ib 

V. Tarwadi, 618* 

Piemkuwar v. Bhika, 533, 

Raman v. Jagjivandas, 145. 

Rambai v Bai Mani, 442, 

Ramkorc v. Jamnada.g, 521. 

Sakar v. Vara Ismail, 633. 

VijU V. Bai Prabhalakshmi, 50, 72, 

87. 

Vijli’s Case, 87. 

Baij Nath v. Tej Bali Singh, 637. 641. 
Baijnath v. Gokul, 286. 

. — V. jVIahabir, 42. 

V. Maharaj Bahadur, 245. 

V. Tej Bali Singh, 635. 637, 

639, 641. 

Prasad v. Binda Prasad, 285. 

Bai V. Mangla Prasad, 186. 

20S 

Baijun V. Biij Bhookun, 219. 

Baikui'.rh Nath v. Jai Kishuii. 134. 
Baisnab v. Ramdhon, 277. 

Baisni v. Bup Singh. 184. 619. 

Bajaba v. Triiubak, 259, 260. 

Bajirao v. Eamkrishna, 557. 

Bajrang Singh v. Gobindprasad. 183, 
188, 286. 

Bajrangi v. Manokarnika, 42, 191, 192, 
196. 

Bakhtarvar V. Bhagwana, 194, 227. 
Bakubai y. Manoliliabai, 104. 

Bai Gangadhar Tilak y. Shriniva.s, 535, 
540, 505. 566, 664. 
V. iShrinivas Pan- 
dit, 566, 567. 

Krishna v. Hira Lai, 188, 201, 202. 

y. Bam Krishna, 418, 421. 

Rajaraui Tukaram y. Maneklal 

JIansukblal, 370, 371. 

Bala y. Balaji, 302. 

y. Baya, 194. 

Anna v. Akubai, 650. 

Balabai y. Mahadu, 561. 

Balabux v. Rukhmabai, 418, 410, 429, 
431. 

Ladhuran y. Rakhmabai, 421. 

Balaji y. Ganesh, 307. 

y. Nana, 293. 

Vasudeo y. Sadashiy Ka.shinatli. 

593. 

Balak Ram y. Nanum Mai, 565, 583. 
Balakrishna y. Mutbusami, 275, 341. 
Balamma v. Pullayya, 73, 76, 77, 78. 



TABLE OF CASES. 


XV 


"R^contd. 

Balaram v. Appa,’ 443. 

V. EamchaiKh'a, 423, 4213. 

Balasubrahmania v. Subbayya, 176. 
Balasubramanya Pandya Thalaivar v. 

Subbayyatevar, 

• ij4o. 

, Tbolaivar v. 

Subbay ya Thevar, 29, 61, 67, 538. 
Bala&undaram v. Kamahshi Ammal, 157. 
Balaswami v. Venkataswauiy, 514. 
Balaswamy v. Venkataswamy, 499. 
Balbhadra v. Bliowani, 442. 

Ba.lbir Singh v. Ajudhja, 300. 

Baldeo v. Biiideshri, 386. 

V. Mathura, 43, 100, 

V. Mobarak, 265, 299, 300. 

— Das V. Sham Lai, 273. 

Prasad v. Arya Pnti XidhiSabha, 

107. 

Fateh Singh, 182. 

Baldeodas v. Sarojini, 437. 

Balgobind v. Badri Prasad, 42. 

V. Rain Kumar, 227. 

Das V, Naraiii Lai, 303, 324, 

327. 

Balabux Ladhuram v. Kakhmabai, 42] . 
Balkishen Das v. Ramiiarain, 395. 

V. Ram Xarain, 406, 412, 

430, 433. 

Balkrishcn Das v. Ram Narain Sahu, 420. 
Balkrishna v. Copal, 645. 

V. Lakshman, 13. 

V. iMoro ICrishna, 295. 

V. Municipality of Mahad, 

295. 

V. Bamkrishna, 72. 

V. Savitribai, 429. 

V. Shri Uttar, 576. 

Balmakund v. Bhagwaii Das, 442. 
Balmukund Lai v. Mussamat Sohano, 
411. 

Balubhai v. Naiiabhai, 529. 

Balu Saharam v. Laboo Sambhaji, 550. 
Balusami, In re, 317, 320. 

Balu Sakaram v. Lahu Sambhaji, 558. 
Balusami v. Narayaua, 49, 62, 63, 64, 66. 

Ayvar, In re, 319, 320, 322, 

352. 

Balusu V. Balusu, 13, 523. 

Balwant Rao v. Baji Rao, 14, 15, 120, 162. 

Singh V. Aman Singh, 380. 

V. Clancey, 37], 595. 

^v. Joti Prasad, 575. 

— * V. Rani Kishori, 247. 


R^contd. 

BalzoL* iSingh v. Kaghunandaii .Singh, 284. 
Baraclcb Bas v. Baja BrajsundeL* Deb, 
520. 

Bamundoas v. Tariiiee, 21, 580. 

Banat-bi Das v. .Sumat Prasad, 16, 531, 
575, C5S, 

Banga Chandra v. rTagat Kishore, 190. 
Bangarn v. Vijayamachi, 621. 

Bank (»f Bombay AAbalal Sarabhai, 
-157 

oi HnicUisfcan v. Premchand, 442. 

Banke Bihari v. Brij Bihari, 408. 

Bankoy Lai v. Burga Prasad, 276, 319, 
:r49. 

i V. Kfighunath, 222. 

I Bansidhar v. Dulhatia, 222, 231. 

I Banwari Lai v. IVJahesh, 382. 

I Bapayya Kukhamnia, 666. 

I Bapuji V. Dattn. 102. 

j V. Gangaram, 556. 

I V. Pandurang, 106. 

Jaganath, In re, 453. 

Barahani (’oal Cbncern, Ltd. v. Gokula.- 
nanda. 507. 

Barada I5'asad Saha v. ICrishna Chandra 
Saha, 220. 

Barahi v. Bebkamini, 435, 436. 

Barati l.al v. Salik Ram, 205. 

Barga Chandra v. Jagafc Kishore, 192. 
Baroda Kanta v. Chunder Kanta, 653. 

SiHida]! V. Dino Bandliu, 654. 

I Basangavda v. Basangavda, 80, 84. 

Ba'sant Kumar Basu v. Ram S hanker 
l^oy, 14, 488, 
552, 574. 

V. Ramshankar 

• Roy, 460. 

Basanta y. Jogendra, 430. 

— V. Kamikshya, 143, 153, 484. 

Kumaii V. Kamikshaya, 125. 

Basappa v. Fakirappa, 203. 

V, Gurlingama, 43. 

V. Rayava, 39, 43. 

V. Sidramappa, 551. 

Basawantappa v. Mallappa, 573. 

Basdeo v. Muhammad, 281. 

Bashetiappa v. Shivalingappa, 559, 563j 
566. 

Basvanb v. Mallappa, 552, 664. 

Bata V. Chinlainani, 418. 

V. Gopal, 407, 434. 

Bawa Magniram v. Kasturbhai, 503. 
Misser v. Raja Bishen, 243. 



XVI 


TABLE OF CASES. 


B — contd. 

Bawan Das v. Chiene, 317. 

Bawani v. Amtal^ay, 582. j 

Bayabai v. Bala, 548, 549, 5G7. 

Bayava v. Parvatava, 21, 40. 

Becha v. Mothina, 013, 025. j 

Becliar v. Bai Lakshmi, 17S. I 

Bed Nath Singh v. Bani Rajeshwari 
Devi, 280. v 

Bednath v. Rani Rajeshwari Devi, 190, 
280. 

Beer Pertab v. Rajender Pertab, 448, 
449. 

Behara Viyyamma v. Ay 3 ^gari Veera 
Venkata Satya Suryaprakash Rao, 
566. 

Behari Lai v. Kailas Chunder, 568. i 

— — ^ — — V. JIadho Lai, 212, 214, 216. i 

V, Shib Lai, 563. ; 

Beharilal v. Sat Naram, 320. 

Bejai Bahadur v. Bhiipindar, 244, 247. j 

Belo V. Parbati, 134. 1 

Bemola v. Jlohun, 265, 341. 

Benares Bank, Ltd. v. Han Narain, 207, 

268. i 

V. Jagdip, 383. ' 

Bengal Insurance and Property Co., Ltd., 

V. Velayammal, 270. 

Beni Madho v. Basdeo Patak, 359, 365. | 

V. Chander Prasad, 284. 

Parshed v. Puran Chand, 362, 363, I 

367. : 

— — Pershad v. Must. Gurdevi, 417. ! 

V. Puran, 244. I 

Ram V. Man Singh, 282, 385. 

Benode v. Purdhan, 95. | 

Behary v. Nistarini Dassi, 479. , ! 

Benoy Krishna Gosli Choudri v- 
Amarendra Krishna Gosh Choudri, i 
276. i 

Bepin Behari v. Durga Charan, 193. | 

Bepni Bheari v. Durga Charan, 214. j 

Besant v. Narayaniah, 588, 589, 601. 

Beti V. Silchdar Singh, 417. 

Bhabha Turini Devi v. Asha Lata Devi, 
505. 

Ehabu Pershad v. Girja Ploer, 367. 
Bhagaban v. Ram Piaparna, 504. 

Bhagabati v. Kahcharan, 472, 482. 

■ V. Kanailal, 013. j 

Bhagat Ram v. Mst. Sahil) Devi, 622 i 

Bhagbat Pershad v. Giija Kocr, 372. | 

Bhagbut Pei'-had v. Girja Koer, 358, 1 

361, 362. 363, 365, 366, 368, 371. ' 


B CQ^Iltd. 

Bhagirathi v. Auantha, 623. 

V. Jokku, 282. 

V. Jokhu Bam, 530. 

Bhagirthibai v. Kahnujirav, 13, 82, 

162, 178. 

Bhagvaii Devi v. Jai Devi, 27. 
Bhagvandas v. Rajmal, 539. 655. 
Bhagwan v. ICala, 453. 

V. Krishuaji, 312. 

V. Warubai, 13, 79. 

Das V. Bittan, 174. 

Das V. Mahadeo, 283, 284. 

— Singh V. Beharilal, 261, 206, 

268, 292, 294. 

— V. Bhagwan Singh, 13, 

560, 561. 

— — V. Mst. Kowal Kaur, 604. 

Bhagwandas Rajmal, 6, 566, 059. 
Bhagwant Singh v. Kallu, 100. 
Bhagwanta v. Sukhi, 166. 

Bhagwantrao v. Punjaram. 37, 127. 
Bhagwat v. Nivratti, 183. 

Daval V. Debt Dayal, 189, 190, 

202 . 

Koer V. Dhanukdhari, 213, .542. 

V, Dkaimkhdhari Prasad 

Smgh, 212, 217. 

Shnkul V. M. T. Kaporni, 248. 

Prasad Bahidur v. Devichand 

Bogra, 329. 

Bhagwati v. Ram Jataii, 186. 

Saraii Singh v. Parameshwari 

Nandar Singh, 100. 

Bhaidas v. Bai Gulab, 477, 487, 488. 
Bhairo v. Parmeshri, 445. 

Bliaiya Rabidafc Siugh v. Indar Kunwar, 
575. 

.Sher Bahadur v. Ganga Baksh, 

5. 

Bhaknarain v. .Januk, 381. 

Bhala v. Parbhu, 183: 

v. Hari, 664. 

Bhana v. Chundu, 299. 

V. Guman, 166. 

Bhaoni v. Mahraj Singh, 519. 

Bharatpur State v. Gopal, 622. 

V. Sri Kishen Das, 370. 

Bharainappa Murdappa v. Harimantappa 
Tippanna, 300. 

Bhai'inappa v. Ujjangauda, 102, 530, 537. 
Bharo.sa Sliukul v 5Lanbiisi Kucr, 177. 
Bhaskar v. Mahadev, 162, 182. 

V. Saraswatibai, 441, 446, 447. 



TABLE OF CASES. 


XVU 


^ — contd. 

Bhaskar v. Vijalal, 293. 

Bhau V. Budha, 307, 308, 309, 312, 
313. 

V. Gopala, 183. 

T. Warasagouda, 548. 

w. Raghunath. 120, 136, 137, 162, 

163. 

Bhausaheb v. Ramgaiida, 203. 

Bhawani v. Himmat, 183. 

Bakhah v. Ram Dai, 359, 362. 

365. 

Prasad v. Kallu, 380. 

Bhekdhari Singh v. Sri Ramebanderji, 
493, 494. 

Bhikabai v. Manilal, 6, 16, 658. 

Bhikaji v. Jagannath, 227. 

Bhikliabai v. Purshottam, 449. 

Bhikhu Bai v. Hariba, 617. 

Bhiku V. Keahav,^39. 

T. Puttu, 307. 

Bhikubai v. Hariba, 616. 

Bhikya v. Babu, 42. 

Bhim Singh v. Ram Singh, 373. 

Bhimabai v. Gurunathgouda, 418, 550. 

V. Tayappa, 558. 

Bhimacharya v. Ramcharya, 140. 
Bhimappa v. Basawa, 578. 

Bhirgu Nath v. Narsingh, 328. 

Bhivra v. Sitaram, 392. 

Bhoba V. Peary IaI, 480. 

Bhogaraju v. Addepalli, 220. 

Bhojraj v. Nathuram, 303. 

Bhola V. Ram 1*11, 654. 

Nath V. Emperor, 1, 663, 666. 

-v. Kartick, 329. 

Prasad v. Ramkumar, 317. 

V. Ramkumar ilarwari. 

322. 

Roy V, Jung Bahadur, 295. 

Uma V. Kausilla, 39. 

Bholanath v. Ghasiram, 394. 

Bhoobin Mohini v. Hurrish Chunder, 
474, 475. 

Bhoobun Moyee v. Ram Kishore, 556. 
Bhoopathi Nath Chakrabati v. Basenta 
Kumaree Debee, 568, 605. 

Bhorvani v. Jaggernath, 274, 428. 
Bhuban Mohun v. Narendra Nath, 499. 
Bhubaneshwar Prasad Narayen Singh v. 
Bjhari Lai, 301. 

Bhr^baneswari Debi v. Nilcomul, 578. 
BhSigbutti Das w. Bholanath, 177. 


' B — contd . 

I 

Bhuggobutty V. Gooroo, 492, 494, 490. 
Bhugwan Singh v. Bhugwan Singh, 17. 
Bhugwandeen v. Jlyna Baeo, 12, 23, 40, 
117, 120, 128, 159, 178, 336. 

Bhujanga w. Ramayamma, 149, 484. 
Bhuj.angouda v. Babu, 548. 

Bhuj) Kunwar v. Balbir Sahai, 329. 

Singh V. JhamnAn Singh, 191, 

212 . 

Bhupal V. Tavanappa, 606. 

Ram V. Lacbma Kuar, 214, 217. 

Bliupati Nath v. Ram Lai, 490, 496. 
Bhupathinath Chakrabati v. Basant- 
kumari Debi, 496. 

Biiupendra v. Amarenda, 475. 

Bhupsingb v. Lachman, 616. 
t Bhyab Ram v. Bhyah Ugur, 31. 

Singh V. Bhvah Dgur Singh, 

29. 

Bibabathi Debi v. Mahcndra Chandra, 
Lahiri, 461, 470. 

Bidhu V. Kuladaprasad, 497. 

Bihari Lai v. Daud Husain, 208, 

. — ^ — • V. Pt. Ramohandia Sharma, 

294. 

Bijai Raj Singh v. Ram Padarath, 370. 
Bijan Majumdar v. Ranjit Lai Sea 
Gupta, 526. 

Bijat Kuinarsingh Buder, /a re, 599. 
Bijoy V. Il.uijit, 541. 

Gopal V. Girindra Nat’a, 191, 193, 

197. 

V. Krishna, 167, 19G, 198, 

225, 229. 

Bijoychand v. Kalipada, 496. 
i * Bikhi V. Kodai, 286. 

1 Bilas Kunwar v. Desraj, 649. 

I Bilvso V. Dina Nath, 400. 

I Bimal Krishna Gosh v. Jnanendra. 
Krishna Gosh, 506. 

Binda v. Kaunsilia, 533. 

— Parsad v. Raj Ballabh, 353. 

Prasad v. Raj Ballabh, 369. 

Bindaji v. Mathurabai, 589. 

Bindeshari Smgh v. Baij Nath iSingh, 45, 
46. 

Bindesliri Tewari v. Lakhan Tewari, 206_ 
Bindeshwari v. Har Narain, 194, 

Binodmi v. Susthee, 95. 

! Bipat Mathon v. Kulpat Mathon, 197. 
Bireswar v. Ardha Chander, 560, 682. 
Bireshwar v. Ardha, 565- 



XVUl 


TABLE OF CASES. 


B — cotitd. 

Biru V. Khanclu, 79. 

Bishambar Das v. Mst. Phulgari, 504. 
Bishambliar v. Fateh Lai, 260. 

— V. Sheo ITarain, 206. 

Das V. Kanshi Pjasad, 424. 

Bishan Singh v. Kedar Nath, 265. 

Bishen Dayal Singh v. Musammat j 

Jaisai)' Kner, 183. i 

Shigh T. Kedar Nath, 278. 

Bashnath Prasad Singh v. (,'handika 
Prasad Kumari, 487. 

Bishun Singh v. Shri Thakurji Bangla 
Nain Bliagwan, 468. 

Bishwanath Sao v. The Official Receiver. 

317. i 

Bisscssor Rani v. Ramakant Dubpy, 34S. j 

Bissesur v. Seetul Chundcr, 259. 

V. Lnchraessiir, 649. 

Lall V, Luchmessur Singh, 263. 

Bissonauth v. Baniasoonderry, 474, 480, 
484. 

Bistoo Pei'shad v. Badlia Sunder, 151. 
Bi.swambhar r. Rajaram, 272. 

Biswanath v. Gajadhar, 245. 1 

V. Jagdip, 270, 381. \ 

V. Kayastha Trading Cor- j 

potation, 190, 267, 286. i 

V. Khantomani, 169, 219. 

V. Ram Prasad, 198. ' 

V Shorashibala,, 523, 663. 

X)as V. Shorashibala, 666. j 

Bithal Das v. Nand Kishore, 345. 

Blair V. Duncan, 490. 

Eodh Singh v. Gunesh Chundcr, 203, 651. 
Bodhrao v. Nursing Rao, 389. 

Bodi V. Venkatasivanii, 450. 

Bola ‘Umar v. Kausilla, 617. 

Bolakce v. Court of M'aids, 259. 

Bolye Chund v. Khetterpaul, 128. 

Boologam v. Swornam, 259. 

Brahma Sastri v. ,Sumitrarania, 545. 

Braja Kisora v. Kundana Devi, 489. 

Lai V. Jiban, 94. 96. 

Biaje.shwareeDasee v. Manoranjan Datta, 
213. 

Bramamayi v. Jages Chandra, 480. 

Brij Indar v. Janki Kocr, 127, 138, 169. 

Lai V. Durga, 305. 

V. Inda Kunwar, 190. 

V. SuTuj Bikiam, 481. 

Xaiaiiils Case, 373, 374, 375. 


B — coucld. 

Brij Narain v. Maiigla Prasad, 361, 306. 

Rai V. Itangla Pra.sad, 348, 

349, 359. 304, 309, 373, 374. 

— — Raj Kuar Ram Dayal, 611. 

iStii-an V. Alliance Bark of Simla, 

333. 573. 

Brijbliukan Das v. Ghasiram, 597. 
Briimohaii v. Kishenlal, 51, 58, 70. 

V. ilahabecr, 316, 352. 

Lai V. Sarabjit .Singh, 284. 

Brijnandan v. Bidva Prasad, 355, 377, 
378, 381. 

Brijnarain v. Jlangal, 375. 

Brijraj Singh v. Shcodaii Singh, 407, 431, 
432. 

Brinda v. Radhica, 613. 

Brijahuu v. t'imndra, 522, 528, 529. 
Brindavana v. Radhamani, 397, 519, 523. 
Brojciidra v. Prosannii Kumar, 594. 
Brojo V. Gouree, 22. 

Brojosooiidery v. Luchmo. 493. 

Buchi V. Jagapathi, 178, 

Buddha , Singh v. Laltu Singh, 29. 44, 
40, 47. 

Budh Karan C'hankani v. Thakur Prasad 
Shah, 207. 

Budha Mai v. Bhagwan Das, 413, 415. 
Budhilal v. Morarjj, 590. 

Bulakan v. Ratan Lai, 050. 

Bulakhida.s v. Ko.sliavlal. 102. 

Bungsc V. Soodist Lall, 294. 

Bunseedhur v. Bindeseree, COO. 

Bumvari Lai v. Dayasankar, 329. 
Burrayya v. Ramayya, 594. 

Buta ilal v. Gopal Singh, 370, 382. 
Byjnath v. Ramoodeen, 315. 

c 

Cally Ghuin v. Bhuggohutty, 587. 

Nath V. Chunder Nath, 477, 480. 

Caralapsthi v. Cota, 480. 

Cassumbhoy v. Ahmedbhoy, 389. 

Cavaly Veucata v. CoUeotor of Masuli- 

patam, 75, 189. 

Chahlu V. Parmal, 205. 

Chain Sukh Ram v. Parabati, 502. 
Chalakonda v. Chalakonda, 259. 
Chalamanna v. Subbamma, 442. 
Chalainayya v. Varadayya, 265, 270, 
276. 

Challa Subbiah v. Palni, 214. ’ 



TABLE OF CASES. 


XIX 


C — ~contd. 

Chamanlal v. Bai Parvati, 179. 

V. Ganesh, 50, 179. 

Cliamar Haru v, Kashi, 39. 

Chamava v. Iraya, 009. 

Chambaaappa v. Madiwalappa, 554, 558. 
Champaklal Chimanlal v. Sodagav 
Amubhai, 389. 

Chandar v. Dampat, 304, 315. 

Chandi C'haran v. Dulal Chandra, 493> 
494, 513. 

V. Hai'ibola, 496. 

Churn v. Sidheswari, 454, 477. 

Chandika Baksh v. Muna Kunwar, 17, 
87. 

Prasad v. Bhagawandas, 183. 

Chandra v. Gojarabai, 556. 

Choor Dev v, Vibhuti Bhushan 

Deva, 464, 510. 

Chur Dev. v. Vibhuti Bhushen 

Deva, 501*, 578. 

Deo V. Mata Prasad, 303. 

Kishore v. Prasanna Kumari, 

457. 

Kunwar v. Narpat Singh, 583. 

Mala V. Mukta Mala, 566. 

Chandi'abali Pathak v. Bliogwanprasad 
Pando, 231. 

Chandrabhaga v. Auadarao, 253, 442. 
Chandrabulee v. Brody, 170. 

Chandradeo v. Mata Prasad, 324, 325, 
326, 359, 370, 371, 374, 
377, 378. 

Singh V. Mata Prasad, 355, 

380. 

Chandranath v. Jadabendra, 507. 
Ghandrapal Singh v. Sarabjit Singh, 590. 
Chandrasekharudu v. Bramhanna, 536. 
Chandreshwar v. Bisheshwar, 561, 570, 
583. 

Cliandrika v. Narain, 385. 

Bakksh Singh v. Bhola Singh, 

505, 510, 517. 

Chandulal Asharam v. Bai Kashi, 141. 
Chanvirappa v. Danava, 395. 
Chanvirgavda v. District Magistrate of 
Dharwar, 605. 

Charnjit Singh v. Amir AU Khan, 7, 
Charu Chunder v. Nobo Sunderi, 152. 
Chatar Sen v. Bajaram, 375. 

Chatarbhuj v. Chatarjit, 49G. 
Chatranarayan v. Uba Kunwari, 201, 
Chatru v. The Ci’ow'ii, 610. 

Chatti V. Pandiangi, 447. 

Chatturbhooj "V. Dharaiusi, 246, 263, 
264. 

Chaturbhuj v. Govind Ram, 370. 


C — contd. 

Chaturbhuj »Singh v. Sarada Charan Guha, 
490. 5lU. 

Chaudri Atma Ram v. Umar Aii, 297. 
Chcdambarani v. JVIa Nyein Me. 2, 101. 
Chelikani v. Vencata, 49, 

Chelimi Chebty v. Subamma, 410. 
Chellaitimol v. Ranganatham, 36, 529. 
Chellafchammo I alias' AnAiamuthammal 
V. Kaiilhurtha Pillai, 545, 547. 
Chengama v. Munisami, 396. 
j Cliengappa v. Raradagunta, 214. 

I Ohengiah v. Subbaraya, 50, 61, 69. 
i (Jhenv'irappa v. Puttappa, 653. 
j (Jherufct^'' alias ''^asu v. Hangamparambil 
I Raiim aha-i Kutfcaman, 604, 605. 

Chet Ram v. Ram Singh, 350, 369, 373. 
Chetau Singh v. Sartaj Singh, 299. 

Chetti V. Chetti, 526. 

Ohettikulam v. Chettikulam, 383. 
Chhaganram v. Bai Motigavri, 228. 
Chhakanri v. Cianga, 385. 

Chhattar Siiurli v. Hukum Kunwar, 23, 
41. 

Chhato Ram v. Bilto All, 596. 

Chhitlur V. Oaara, 40. 

(’hhotalai V, Bai Mahakore, 414. 

Chhotcy -Cal v. C4anpat Rai, 347. 

Cliauduri v. Dahp Narain, 

207. 

Singh V. Surat Singh, 167. 

Chliotiram v. Narayandas, 280, 282. 

I CUidanibaia v iCrislinasami, 458. 

I — V. Nallammal, 227. 

V. Rangasami, 597, 598. 

Chidambaram v. Gauri Nachiar, 422. 
^hidambaramino, v. Husainamma, 196. 
Chimabai v. Alallappa, 548. 
i CJiimalkonda Ramsubbaraya Sastri v. 
Ganpathi Raju Venkata Apiiaiula- 
iiarasimha Raju, 314. 

Chiman Lai v. Hari Chand, 16, 660. 
Chiinna v. Sada, 294. 

Chimnaji v. Uinkar, 183. 

Chinna Ana Muthu Ayyangar v. Thiru- 
vengadammal, 567. 

Chinna v. Pedda, 665. 

V. Suriya, 310. 

V, Veddo,, 560. 

Fichu V. Padmanabha, 55. 

Chinuammal v. Venkatachala, 50. 
Chinnasami v. Kunju Pillai, 28. 
Cliinnaswami v. Appasawami, 213. 
Chinnaya v. Gurunatham, 293. 
Chinnayya v. Perumal, 302. 



XX 


TABLE OE CASES. 


C — could. 

Chinniah Chetticr v. Sivaf;ami Aclii, 27. 
Chinnu PiUaiv. Kalimuthij, 310, 311, 313. 
Chintaman v. Dhondo, 511. 

Chintamani v. Satyabadi Kar, 286. 
Chintainanibhatla v. Bani of lYadhwan, 
190. 

Chintanianrav, v. Kashiuatb, 371, 374, 
377, 378, 380. 

Chintamun v. jSTowIuklio, 389. 

Chippagiii Nagireddi v. Vcukachari 
iSomappa, 278. 

Chiragh Din v. Abdullah, 228. 

Chiranji Lai v. Bankey Lai, 282. 
Chiruvolu v. Chiruvolu, 230. 

Chitar Mai v. Panchu Lai. 51.5. 

Chitko V. Janaki, 575. 

■Chookalingam v. Muthukaruppan, 200, 
208, 347, -109. 

Chotalal v. Manohar, 498, 510, .511. 
Cbotay Lall v. Chunnoo Lall, o, 23. 41, 
159, 050. 

■Chotkao Singh v. Hasan, 385. 

Choudburi v. Hayagnba, 383. 

Chowdhry Chintamun v. Mussaiuut 
Nowlukho, 641. 

Ganesh Dutt v. Jewach, 233, 

400, 401, 413. 

Pudum Singh v. Koer Oddey 

Singh, 542. 

Chowdry Junmejoy v, Russo moyee, 181. 

Pudum Singh v. Koer Oddey 

Singh, 530. 

Chowdrani v. Tariny Kanth, 134. 

Chukun T. Poran, 275. 

Chunder v. Sarnamayi, 212. 

— Nath V. Kristo Komul, 049. 

Chunderhulle’s Case, 556. 

Chuni Lai v. Jai Gopjal, 641. 

Chunilal v. Bai Samarth, 475. 

V. Surajram, 141, 142, 519 

520, 528. 

Chuoturya v. Purhulad, 607. 

V. Sahub Purhulad, 1,36,397. 

C'huraman v. Gopi Sahu, 186. 

Chuttan Lai v. Kallu, 244, 329. 
Coimbatore Venkiitar.aman Vilas Co., 
Ltd. V. OfOcial Receiver, Coimbatore, 
348. 

Collector of Dacca v. -T.ag.at (‘bunder 
74. 

of Gorakpur v. Ram Sundar 

Mai, 042. 


C — cc ncld. 

Collector of Madura v. Moottoo Rama-" 
linga, 10, 11, 12, 13, 15, 
112, 336, 537, 544, 546, 
547, 548. 

of Masulipatam ^v. Cavaly 

Vencata, 74, 98, 159, 108, 
169, 179, 180, 181, 184, 197, 
202 . 

of Thana v. Hari, 501. 

Commissioner of Income Tax v. A. V. P. 

Mr. M. Lakshamanan Chettiar, 28. 
Commissioner of Income Tax v. Luxmi- 
narayen, 233, 614. 

Commissioner of Income Tax v. 
Panuabai, 239. 

Commissioner of Income Tax v. Pemsel, 
490. 

Commissioner of Income Tax, Punjab 
V. Krishna Kisbore, 039. 

Commissioner of Inco ne Tax, U.P. & C.P. 

V. Sarwan Kumar, 014. 

Commissioner of Income Tax v. Ziiraiu- 
dar of Chomudu, 638. 

Cooverji v. Dewsey, 367. 

Court of Wards v. Mobessur, 128. 
Cursandas v. Vundravandas, 491. 

D ^ 

Dadaji v. Kukmabai, 528, 533. 

Dagadu v. Sakhubai, 417. 

Dagai v. Mothura, 441. 

Dagdu T, Balvant, 654. 

Dagdusa v. Ramchandra, 644. 

Dagree v, Pacotti, 5, 7. 

Daji V. Laxman, 2C2. 

Dal Bahadur .Singh v. Bijai Bahadur 
Singh, 583. 

Singh V. Dini, 43, 100. 

Dalel V. Ambika, 579. 

Kunwar v. Ambika, 619, 

Dalibai v. Gopibai, 286. 

Dalip Singh v. Chaudrain, 650. 

— V. Kundan Lai, 293. 

Dalpatsingji v. Eaisingji, 582. 

Dalsingar Singh v. Jainath Kuar, 45. 
Dalsukhram v. LaUubai, 626. 

Damodar v. Bhogilal, 511. ' 

—V. Parmanandas, 125, 136. 

— V. Purmanandas, 484. 

— Da.s V. Adhikari Lakhan Das, 
515. 

— Vishnu V. Shriram Laxman, 


548 . 



TABLE OE CASES. 


XXl 


D — contd. 

Damodaram v. Bansilal, 269, 376. 
Damodardas v. Uttamram, 264, 275, 
389, 400, 401. 

Damodarji v. Collector of Banda, 665. 
Damoodur^v. Senaliutty, 394, 400, 401. 
Danakoti v. Balasundara, 547 
Dangal Bam v. Jaimangal, 292, 384. 
Banno v. Darbo, 41. 

Darbari Lai v. Govind, 182, ISC, 190, 
191. 

Darling, In re, 490. 

Daroga Rai v. Ba.sdco Mahto, 17S, 180. 
Darsn Pandey v. Bikarmajlt Lai, 371. 

Das jVIal v. Ram C'hand, 226. 

Ram V. Tirtha Math, 229. 

Dasami v. Param, 493. 

Dasaratbarama t. Naraha, 293. 
Dasbarathi v. Bipin Behari, 153. 
Dattatraya t. Gailaabai, 59, 72, 571. 

V. Govind, 569. 

Maruti v. Laxman Jufcippa, 

561, 614, 615. 

V. Enkhmabai, 614. 

V. Vishnu, 371, 374, 377, 378. 

— Tatya v. Malha Bala, 5, 73. 

Dattatreya Govind Haldenkar, In re, 
281, 285, 599. 

Daulat V. Sankatha, 201, 289. 

Knar v. Beshundco Singh, 36. 

Ram V, Meherohand, 279, 294, 

299, 367. 

V. Ram Lai, 530. 

Daulta Kuari v. Meghu, 616, 617. 
Dawood V. Vullubhdas, 645. 

Daya Ram v. Harcharan Das, 324, 326. 
Dayaldas v. Savitri Bai, 144. 

Dayamani v. Srinibash, 187, 197, 198. 
Dayanand v. Daji Karain, 367. 
Debanand v. Anandniani, 596. 

Debendra v. Brojendra, 337, 436, 437. 

V. Fyzabad Bank, 348, 352. 

Debendrariath Sarma v. Kagendranath 
Dutt, 190. 

Debi Das v. Mukat Behari Lai, 61, 66. 

Dayal v. Bhan Pertap, 169, 183, 186, 

187. 

Salioo T. Bhan Partap Singh, 

218. 

- -Lai V. Kand Kishore, 530. 

Utangal Pra.s.ad v. Mahadeo Prasad, 

(34 All. 234), 120, 127, 128. 

Prasad v. Dharamjit, 294. 


D — contd. 

Dcbi Prasad v. Golap Bhagat, 178, 191. 

Saran v. Daulata. 612. 

I Singh V, Jia Ram, 380. 

I Dehiprasanna v. Harendra, 154. 
i Deen Dyal v. Jugdeep, 345. 

Dayal v. Jugdeep Karain, 305, 

306, 313, 327. , 

Decndyal v. Jugdeep Narain, 367. 

Deo Kiahen v. Budh Prakash, 102, 104, 
105. 

Kuar V. i.Ian Knar, 446. 

Narain v. Ganga Singh, 328. 

Dcoki V. Jvvala Prasad, 227. 

Deonarain v. Agyan Ram, 263. 

Deosthan v, Eamdayal, 501, 514. 

Deputy Commissioner v. Sheo Nath, 419. 

— — — of Kheri v. Khan- 

jan Singh, 202. 

DeSilva v. DeSilva, 650. 

Desu Eeddiai v. Srinivasa Reddi, 224. 
Devondranath Sarma v. Nagendranath 
Dutt, 203. 

Devi Das v. Jada Ram, 348, 353, 369. 

Persad v. Gunvanti, 184. 

V. Gunwanti, 613, 619, 

Devji V. Sambhu, 219. 

Devkore v. Amritram, 32. 

Devshankar v. Motiram, 491. 

Dhadha JSahih v. Muhammad, 311. 
Dhanabathi Bibi v. PratapmuU Agar- 
walla, 399, 409. 

Dhanji v. Dhuma, 196. 

Dhanraj v. Soni Bai, 584, 658, 659, 660. 

I Dhanraj v. Sonibai, 584, 659, 
Dhanukdhari v. Rambirich, 282. 

Dhapo V. Ram Chandra, 281. 

Dharam Kunwar v, Balwant Singh, 583, 
584. 

Narain v. Suraj Narain, 505, 

517. 

Prakash v. Kalawati, 583. 

Singh V. Hira, 167. 

Dharamchand v. Bhawani, 189. 

Dharani Kant v. Kristo Knmari, 649. 
Dharma v. Ramkrishna, 561, 563. 

V. Sakharam, 38. 

Dharmapuram v. Virapandiyam, 74, 664. 
Dharmarajsingh v. Chandrasekhar Rao, 
279. 

Dharmodas v. Nistarini, 442, 443. 
Dharnidhai v. Chinto, 578. 

Dhiraj Singh v. Manga Ram, 211. 



XXll 


TABLE OF CASES. 


D - co)ttd. 

Dhondi v. Radhabai, 162. 

Dnyanoo v. Raraa Bala, 550. ! 

Dhondo Ycsbwant. v. Mishriial Suraj- | 
muU, 211. i 

Lhondshet v. Eavii, 645, 647. 

•* I 

Dliondu V. Gongabai, 79. , 

V. Xiirayan. 643. 

Dhoorjeti v. Dhoorjeti, 166. 

Bhul Nath v. Ram Charitra, 128. 

Dhulabhai v. Lala Dhula, 310. 
Bhunookdharee v. Gunpat, 259. 

Dhurjati v. Ram Bharoa, 132. i 

Dhurm Das v. Shama Soondri, 263. 

Panday v. Musauinat Shama 

Soondri Dibiah, 650- 
Dhiironidhnr, in the matter of, 532. 
Digambar v. Dhanraj, 393, 424. 

Dignmber Roy v. Moti Lai, 88, 90, 96. 

Diltor Koer v. Harkhu Singh, 212. 

Din Tarini v. Krishna, 4.53. , 

Dinesh Chandra v. Biraj Kamini, 4.54. 
Dinkar v. Appaji, 293. 

V. Gancsh, .540. 

Di-vrakar v. Chanda nlal, .583. I 

Diwan Ram Bijai v. Tnderpal. 134. ! 

Dnyanebhtrar Krishna v Ananta 
Vasudeo, 39,5. 408. 

Dnyanu v. Tanu, 5.51. j 

Domodarda-s v. Uttamram, 275. ] 

Doorga Parsad v. Doorga Kanwari, 202, 

— V. Kundun, 412,413,415. 

Doraisami v. Nondiflami Salunvan, 335. 
Dose Thimmanna v. Krishna, 625. 
Drobomoyee v. Shama Churn, 554. 

Dubhin parbati Kuer v. Baijnath Prasad, 
142. 

Dugappa V. Venkatramnaya, 307. 

Dular Koer v. Dwarka N.ath, 533. 

Koeri v. Dwarkanath, 309, 611. ■ 

DuUiim Parbati Kuer v. Baijnath 
Prasad, 40, 172, 187, 213, 221. 

Dulip Narain v. Parmaoti, 364. 

Dundappa v. Bhimawa, 155. 

Dundoobai Aiiandrao T, Vithalrao 
Anandrao, 551. 

Duibar'.s case, 385. 

Duibai’ V. Khacbar, 384. i 

Durini. V. Chanthal, 508. 

—V. Lai Bahadur, 415. ■ 

Dab V, Ganesh Dat, 259. 

V. Gita, 40. ’ 


D — concld. 

Durga Nath v. Chintamoni, 88, 95, 178, 
179, 434. 

Parasada Rao v. Sudarsanaswami, 

6. 

Prasad v. Bhajan, 3331 

— V. Damodar Das, 293. 

Barbai v. .Jewdhari Singh, 

289. 

Singh V. Brajanath Bose, 

635. 

Durgadut v. Rameshwar, 638. 
Durgaprasad Barbai v. Jewdhari Singh, 
285, 286. 

Durgi V. Kanhaiya Lai, 575. 

Duri V. 'Cadepatri, 424. 

Durvasiila v. Durvasula, 259. 

Dwarka Das v. Kishan Das, 383. 

V. Krishan, 329. 

Nath V. Bur;gshi, 276, 341. 

V. Sarat Chandra, 139. 

— • — Prasad v. Jamna Das, 262. 

— Ram V. Bakshi Parnaw Prasad, 

286. 289. 

V. Jhulai, 201, 289. 

Dwarkadas v. Krishan, 292. 

Dwarlranath v. Burroda, 490. 

E 

Ekoba V. Kashiram, 43. 

Kkradeshwar v. Janeshwari, 638. 
Kkradeshwari v. Homeshwar, 615, 619. 
Emperor v. Bai Ganga, 531. 

V. Madan Gopal, 524. 

V, Munchi Bam, 628. 

V. Sital Prasad, 588. 

Empress v. Prankrishna, 689. 

Esii.an Chunder v. Nund Cobmar, 340, 
342. 

Kishor v. Harisehandra, 567. 

F 

Facz Buksh v. Fukeerooden, 650. 
Faizuddin v. Xincowri, 554. 

Fakirappa v. Chanapa, 303. 

V. Lumanna, 594. 

^v. Savifcrowa, 552. 

— V. Ycllappa, 35, 396. 

Fakirchand v. ^^Eotichand, 255, 317. 
Fakirgauda v- Gangi, 523, 529, 663, 666. 
Fakrichand v. Motichaiid, 320. 



TABLE OF CASES. 


XXlll 


F- — concld. 

Fanindra v. Adm.-Gen. of Bengal, 490. 

• V. Rajeshwar, 534. 

Deb. V. Rajeshwar, 17, 582. 

Faqirchand v. Sant Lai, 345. 

Fateh Chand v. Rup Chand, 484, 488. 

Singft V. Raghubir Sahai, 178. 

V. Thakur Rukmmi, 203, 

204. 

Fatesangji v. Harisangji, 033. 

Fatmabai v. Tukabai, 292. 

Felaram v. Bagalanand, 201, 202, 

Firm Govindram Dwarkadas v, NatUulal, 
349. 

Francis Ghosal v. Gabri Ghosal, 7. 

G 

Gada Dhur Mallik v. Official Trustee oj 
Bengal, 475. 

Gadadhar v. Chandrabhagabai, 120, 162, 
175. • 

Gajadhar v. Gavai Shankar, 58. 

V. Jadubir, 3C4, 365, 380. 

V. Jagannath, 382, 386, 643. 

V. Kaunsilla, 617. 

V. Musammat Sukhodi, 617. 

Prasad v. GaYri Shankar, 56> 

57, 58, 70, 72. 

Gajanan v. Kashinath, 562. 

Gajapathi v. Gajapathi, 412. 

Gajapati v. Pusapati, 187. 

Gajendar Singh Y. Sardar Singh, 263, 
417. 

Gajja Nand v. The Crown, 522. 

Gajagopi v. Pulla Kami Reddi, 279. 
Ganap y. Subbi, 198. 

Ganapathi v. Sivamalai, 457. 

V. Subramanyam, 409, 423. 

Gandhi Maganlal y*. Bai Jadab, 163, 165. 
Ganesh v. Narayan, 300. 

'V. Shankar. 508. 

V. Wagju, 86. 

Chander v. Lallbehari, 462, 468. 

Chunder Dhur v. Lai Beharv 

Dhur, 505. 

V. Lai Behan 

Dhur, 509. 

Dutt Y. Jewaeh, 415. 

Lai Y. KJietra Mohan, 185. 

Mahto V. Shib Cliaran Malito, 

5, 17. 

Prasad v. Hazari Lai, 35. 

Singh Y. Sheogobind 


G- — contd. 

Ganesha Rao v. Tuljaram Row, 292. 
Gaheshi Lai y. Ajudhia Prasad, 141. 

V. Banu Lai, 428. 

Ganga v. Jhalo, 591. 

V. Kanhai Lai, 226. 

V. Lekhraj, 523, 585. 

vn Pirthi Pal, 251. 

Baksh V. Jagat Bahadur, 446. 

Dayal v. Mani Ram, 335. 

Sahai v. Kesri, 47, 651. 

Y. Lekhraj, 561. 

Saran v. Ganeshi Lai, 375. 

Gangabai \-. Anant, 560. 

Y'. Bandu, 36. 

— V. Hari Ganesh, 166. 

— Y^. Jankibai, 627. 

X. Sitaram, 618. 

Y-. Thavar, 491. 

V. Thavar Mulla, 631. 

V. Vamanaji, 280. 

Gangabisan y", Vallabhdas, 324. 
Gangadarai\'a y". Parameshwaramma, 
484. 

Gangadhar y'. Hira Lai, 570. 

V. Ibrahim, 35. 

V. Yellu, 39, 100. 

Gangamma y'. Kuppammal, 239, 564. 
Gangaperslia d v. Maharani Bibi, 599. 
Gangaram y’. Bapnsaheb, 293. 

Y-. Dooboo, 508. 

Gangayya y*. I'cnkatarmiah, 268. 

Gangi Reddi y". Tammj Reddi, 251, 492, 
495. 

Gangu Y'. Chandrabhagabai, 103, 104. 
Ganpat x. Adarji, 643, 647. 

Y-. Annaji, 253, 264, 270, 271, 425. 

V. Gopabao, 396. 

Y-. Kamdeo, 414. 

Y-. Secretary of State, 74, 134, 141, 

154. 

V. Tulsiram, 182, 186. 

Rai V. Munni Lai, 276. 

^Rao Y. Ishwar Singh, 285. 

Ganpatrao Shripatrao Y. Balkrishna 
Gururao, 564. 

Ganpathy v. Subramanyam, 410. 

Garuda Sanyasayyan y^. Nerella Mur- 
tlienna, 384. 

Garuddas y'. Laldas, 47. 

Gann y'. Chandramani, 625. 

Nath Kakaji v. Gaya Knar, 40, 


Safhoo, 267. 


187. 



XXIV 


TABLE OP CASES. 


G- — contd. 

GaiiT-i Shankar v. Jiwan Singh. 287. 

Shankar & Ors. v. Slohankil, 41)0. 

V. Sheonandan. 373. 

Ganxikumari v. Ramanimoyi, 510. 
Gavdappa t. Girimallappa, 553. 

Gaya Din v. Badri Singh, 120. 

Prasad v. Mnrlidhar, 352. 

Geerdharee Doss v. Nundokissorc Doss. 
504. 

Genda Puri v. Chatar Puri, 504. 
Getfcappa v. Eramma, 6, 538, (ioO. (ioT, 
658. 

Ghambhirmal v. Hamirmal, 225. 

Ghana v. Gereli, 608. 

Ghanshyam Singh v. Bedi}'a Lai, 185, 
189. 

Gharib-Ullah v. Khalak Singh, 239, 270, 
279, 282, 589, 599. 

Ghasiram v. Girdhari, 198. 

Ghasita v. B'^azira, 602. 

Ghasiti v. Umrao Jan, 664. 

Ghazi T. Sukru, 522. 

Ghelabhai v. Bai Javer, 219. 

V. Hargowan, 517. 

Ghisiawan v, Mst. Raj Kumari, 101, 227. 
Girdharee Lall v. Kantoo Lall, 328. 347, 
371. 

Girdhari Lai r. Kishen Chand, 270. 
Girdharlal v. Bai Shiv, 344. 

V. Manikamma, 652. 

Girianna v. Honama, 615. 

Giriapa v. Ningapa, 572. 

Girijanxind v. Sailajanund, 510. 

Glriowa v. Bhimaji, 554. 

Girja Bai v. Sadashiv, 408, 409, 411, 422. 
Girwar v. Makbune-ssa, 298. 

Giyana v. Kandasami, 498. 
Gnanasambanda v. Vein, 505, 508, 509, 
516, 617. 

Gobardhan v. Jasada-moni, 531, 532. 
Gobind v. Abdul, 101, 427, 

V. Dowlat, 611. 

V. Gomti, 497. 

V. Lokhrani, 182. 

V. Mohesh, 94. 

Proshad v. Mohesh Chunder, 96. 

Singh V. Baldeo Singh, 201, 289. 

Gobinda v. Ram Gbaran Das, 505. 
Kumar v. Debendra Kumar, 


G — contd. 

Gobinda Ramanuj Das Mohanta v. 
Mohanta Ramcliaran Ramanuj Has, 
497, 499, 501, 508. 

Godavaribai v. Sagunabai, 615. 

Gojabai v. Shriinant iShahaji’'ao, 13, 141, 
146. 

Gokal V. Anierchand, 265. 

— Chand v. Hukum Chand — Nath 

Mai. 259, 265, 269. 

Goldia Ram v'. Sham Lai, 382. 

Gokibai v. Lakhraidas, 615, 620. 

Gokool Nath v. Issur, 491. 

V. Issur Lochun, 477. 

Gokul Chand v. Matigalsan, 453. 

Pati Datta v. Pashu Pati Nath 

Datta, 431. 

Gokulananda Hariohandan v. Iswar 
Chhotrai, 228, 230. 

Golab Koonwar v. CMlector of Benares, 

74. 

Goolab Singb v. Kurun Singb, 225. 

Goona Durgaprasad Rao alias Pedda 
Babu V. Guna Sundarasan Swami and 
Ors., 524. 

Gopal V. Gangaram, 647. 

V. Hamant, 585. 

V. Hanmant, 623, 663. 

V. Kenaram, 430. 

V. Keshoba, 251, 649. 

V. Narayan, 536. 

V. Radha, 513. 

V. Raghunath, 637. 

V. Vishnu, 548, 561. 

Chand v. Babu Kunwar, 261. 

Chandra y. Ram Chandra, 143 

153. 

Chunder v. Kartiok Chunder, 509, 

510. 

Das V. Badri Nath, 293. 

V. Xopan Das, 370. 

Krishna Kasandhan v. Mst. 

Jaggo, 531. 

Lai Sett T. Puma Chandra Basak 

494, 512. 

Prasad v. Raghnnath, 637. 

Gopalakrishnayya v. Gopalan, 320. 
Gopalasami v. Arunachelam, 253, 609 

V. Arunachellam, 398. 

V. Chinuasami, 252. 

Gopalasivainj' v. Meenakshi, 457. 


513 . 



TABLE OF CASES. 


XXV 


G- — contd. 

Gopalayyan v. Raghupatiayyan, 16. 
Gopalkrishnam v. Ventatarasa, 282, 518, 
530. 

Gopalu Pillai v. Kofchandaram Ayyar, 298. 
Gopee Kish«n v. Hem Cliunder, 342. 
Gopee Lai’s case, 584. 

Lall T. Chundraolee, 536, 551, 584. 

Gopeekrist v. Gungaperaaud, 263, 649. 
Gopi V. Markande, 053. 

Gopi V. Mu.saramat Jaldkara. 483. 

Krishna Kasimdban v. ilt. Jaggo, 

523. 

Gopi Nath v. Bhugwat, 053. 

IVasudev v. llarkande, 649. 

Gopikabai v. Dattatraya, 021. 

Gofm V. Bamj, 492. 

Gordhan Das v. Bai Eamcoovcr, 21. 
Gordhandas v. Bai Ramcoover, 441, 446, 
447.* 

V. Chunilal, 491. 

Gosami Sri Girdhariji v. Eoiuaiilaljj, 
505, 509, 510. 

Gosavi Shivgar v. Rivett Carnac, 477. 
Gosling V. Gosling, 478. 

Goswami Puran Lalji v. Ras Bihari Lai. 
507. 

Gourah v. Gujadhur, 589. 

Goureenath v. Collector of Mongyr, 281. 
Gouri Shankar v. Jang Bahadur, 359. 
Govrishankar v. Atmaraiu, 417, 
Government of Bombay v, Ganga, 531. 
Govind v, Radha, 14. 

V. Ram Adhar, 40. 

— V. Sakharam, 348. 

V. Savitri, 141, 519. 

V. Trimbak, 389. 

Bha-wshet v. Bhike Mahadeoshct, 

41. 

Prasad, in the matter of. 599. 

Govindarazulu v. Devarabhotla, 2^, 518, 
530. 

Govindayyar v. Dorasami, 666. 

Govindji v. lakmidas, 157. 

Govindoss v. Ofhoial Assignee of Madras, 
431. 

Govindprasad v. Rindabai, 566. 
Gowardhandas v. Viru Mai, 196. 

Grey V. Walker, 269, 317. 

Gridhari L.all v. The Bengal Government, 

12, 49, 50, 74. 

Grimond v. Grimond, 490. 


G — Goncld. 

Grose v. Amirtamayi, 169. 

Guddati v. Gunapati, 564. 

I Gujrath Oil Mills & Mfg. Co., Ltd. v. 
j Patel Shakarabhai, 3.30. 

I Gulabchand v. Mannilal, 16. 

I Lala V. Manilal Lala, 262, 

263. 

Gulab Das v. Manohar Da9, 505. 

Gulab Devi v. Banwari Lai, 186. 

I Gulabbhai v. Sohangdasji, 497. 

Gulabdo-ss v. Manohar Dass, 510. 

' Gulappa V. Tayawa, 82, 145, 162. 

' Gulbai, ill re, 588. 

Gummanan v. Jahangira, 226, 227. 
Gunap V. Subbi, 187. 

Guneshwar v. Durga Prasad, 102. 

I Gunga Prosad v. Ajudhia Pershad, 377, 
I 378. 

I Gunpat Rao v. Ram Chunder, 128. 

I Gur Dayal v. K.iunsila, 623, 624. 

I Nanak v. Jainarain, 220. 

I Narajan v. Sheo Lai Singh, 653, 

! 654. 

I Guvan Ditta v. Pokhar Ram, 292, 296. 

I V. Rom Ditta, 650. 

j Guravayya v. Datatraya, 296. 

Gurdial v. Bhagwan Devi, 140. 
Gurlingapa v. Nandapa, 311, 314. 

V. Sabu, 310. 

1 Gursarn Das v. Mohan Lai, 384. 

I Guru Das V. Bijaya, 272. 

Gobind V. Anand Lai, 76, 88, 89, 

90, 91, 94, 96, 98. 

Shaha Mandal v. Anand 

• Lai Gliose Mazumdar, 62. 

I Gurulingaswami v. Ramalakshmamma, 
584. 

Gurnmuk Singh v. Shiv Ram, 267. 

I Gurunatham v. Raghavalu, 384. 
Gurusami v. Sivakami, 460. 
Gurushiddappa v. Parwatewwa, 615, 620. 
Guruvappa v. Thimma, 300, 301. 
Guruvayya v. Datatraya, 299. 

H 

Haji Ismail, in the matter of the will of, 
032. 

, Oosmaii V. Haroon, 631, 633. 

Saboo Sidick v. Ally Mahomed, 

632. 



XXVI 


TABLE OF CASES. 


H- — contd. 

Haji Saboo Sidick v. Ayeshabai, 616, 
632. 

Hakma Manji v. Memoa Ayab, 643. 
Hammant Kashinath t. Ganesh Ana.aji, 
357. 

Hanamgowda r. Irgowda, 581. 
Hanmandas v. Valabbdas, 306, 308, 310^ 
367. * 

Haamant v. Bhimacharya, 395, 450, 536. 

V. Ganesh, 349, 384. 

V. Krishna, 581. 

V. Ramchandra, 329. 

Raniji v. Vasndeo Haninant, 

51. 

Hanmantapa v. Jirabai, 250. 

Hanooman Persaud v. Mussamat 
Babooee, 201, 290. 

Hans Raj v. Khushal Singh, 285. 

Hanso Pathak v. Harmandi Pathak, 258. 
Hansraj v. Mst. Somni, 199. 

Maiji, in re, 322. 

Hanumat v. Sonadhari, 282, 385. 
Hanuman Singh v. Nanak Chand, 371. 
Har Bus Singh v. Musammat Shiuiti 
Devi, 400. 

Har Mitra v. Raghnbar, 183, 192. 

Narain v. Bishambhar, 400. 

Prasad r. Kewai, 523. 

Shankar v. Lai Raghuraj, 583. 

Haran Chunder v. Hurro, 562. 
Harbinaon, Be, 491. 

Hard! or Hurdey Narain v. Ruder Per- 
kash, 305, 309, 313. 

Hardoi v. Kanhaiyalal & Ors., 74. 
Hardwari v. Qomi, 448. 

Harendra Nath Mukherji v. Hari Pada 
Mukherji, 192, 195. 

Hargobind v. Dharam Singh, 397, 608. 
Hargovind Singh v. Collector of Etali, 
636, 638. 

Hari V. Antaji, 509. 

V. Bajrand, 182. 

V. Balambhat, 643. 

V. Ganpatrao, 426. 

T. Jairam, 299. 

V. More Lakahman, 453. 

— ^ — Annaji v. Vasudev, 79. 

Bai Annaji v. Naraycn Han. 213. 

Baksh V. Babu Lai, 419, 420. 

Charan v. Kaula Rai, 281. 

Das V. Rama Churn, 94, 96. 


H COKtd. 

Hari Govind v. Alchoy Kumar, 654. 

Gopal V. Gokaldas, 295, 299. 

Kishan v. Chandu Lai, 394. 

Kishen v. Kashi Pershad, 192. 

Lai V. Munman Kunwar, 294, 360. 

Lall, in the matter of, 645*. 

Narain Das, in re, 599. 

Narayan v. Vital, 40. 

Nath V. Mothurmohun, 219. 

Prasad v. Sourendra, 350, 375. 

Haribhai v. Mathur, 87. 

Harisbhat v. Damoderbhat, 162. 

I Haridas v. Baroda, 628. 

i V. Devkuvarbai, 251, 2.54. 

V. Prannath, 425. 

Chatterji v. Manmatha Nath 

Malhk, 560, 582. 

Harihar v. Ram Daur, 49. 

V. Udainathfi 194. 

Harilal v. Bai Mani, 449. 

V. Bai Rewa, 484, 485. 

V. Gordhan, 601. 

V. Mani, 597. 

V. Nagar, 645, 646. 

V. Pranvalabdas, 179. 

Haripada Ojha v. lohhamayee Deb, 
488. 

Hariram r. Madan Gopal, 643, 658. 

Hans Chandra v. Atir Muhmud, 74, 107 , 
664. 

Harjivan v. Naran, 441. 

Harkesh Singh v. Hardevi, 408. 

Harnabh v. Mandil, 16, 160. 

Hernabh Pershad v. Mandil Dass, 539, 
657, 658. 

Hamath Knar v. Indar Bahadur, 166. 
Haroddot v. Beer Narain, 332. 

Harcmn Mahomed, in the matter of, 264^ 
^ii|269, 630, 632. 

Ha^^ Ali V. Naga Mai, 659. 

Hassonally v. Popatlal, 632. 

Hazari Lai v. Ram Lai, 409. 

Mall V. Abaninath, 247. 

Hem Chunder v. Sarnamoyi, 214. 

V. Thako Moni, 315. 

Raj T. Bashesher Das, 353. 

Hemchandra Ganguli v. Matilal Ganguli 
342. 

Hemangini v. Kedarnath, 127, 437. 
Hemendranatli Ray Chaudhari v, 
Jnanendra Prasanna Bhaduri, 18. 



TABLE OF CASES. 


XXXI 


1^—contd. 

ii 

Kanuram v. Kashi Chandra, 214. 

Karali v. Ashutosh, 102. 

Karamsi V. Karsandas, 582. 

Karan Singh t. Bhup Singh, 358, 301. 

— w — V. Mt. Tetar Kuer, 335. 

Karbasftppa y. Kallava, 615. 

Karimuddin v. Gobind Krishna, 187. 
Karm Chand v. Ram Labhaya^^. 
Karsandas v. Gangabai, 242, 254. 

Kartic Chunder v. Saroda Stmdari, 600. 
Karunabdhi Gancsa v. Gopala, 547. 
Karuppa v. Kumarasami, 308. 

Karuppai v. .Sankaranarayanan, 23, 43, 
140, 155, 240. 

Karuppanna v. Bulokam, 398. 
Karuppayee v. Eamaswami, 37. 

Kashi, in the matter of, 523. 

Prasad v. Inda Kunwar, 109, 177- 

Kashibai v. Moreftiwar, 80, 85. 

V. Tatya, 574. 

Kashinath v. Bapurao, 280, 330. 

V. Chimna]i, 295, 299 

Baiakrishna v. Anant Mmli- 

dhar, 530. 

Kastnrbai v. Shivajiram, 015. 

Kasturi v. Chiranji Lai, 522. 

V. Panna Lai, 521, 523. 

Katama Natchair v. The Rajah of Shiva- 
gunga, 25, 219, 239, 242, 243, 255, 256, 
270, 272, 390, 039, 042. 

Katchi Kaliyana v. Ivatchi Yuva, 038. 
Kateeram v. Musamniat Gendhenec, 533. 
Eathama Natchair v. Doraisinga. 225. 
Kattnsheri Vallotil, 295. 

Kaulesra v. Jorai, 588, 591. 

Kaura Devi t. Indra Devi, 623. 

Kanski Ram v. Harnam Das, 292. 

Kawal Nain v. Prabhulal, 409, 412. 
Kayarohana v. Subbaraya, 102. 
Kayastha Pathsala, Allahabad 
Bhagwati Devi, 474. 

Kedar Nath v. Ratan Singh, 409. 

Kehri Singh v. Chunni Lai, 380. 
Kenchava v. Girimalappa, 72, 87, 103, 
146. 

Kerwick v. Kerwick, 649. 

Kesarchand v. Uttamchand, 383. 

Ko.s.ar Singh v. pSccretarj^ of State, .50, 
.52. 50, 58. 70, 545. 

— : V. Santokh Singh, 285. 

Keaaree v, Saniardhan, 36. 


K — contd. 

Keaari Singh's case, 58. 

ICeshab v. Gobind, 556. 

Keshav v. Bai Gandi, 531. 

V. Maruti, 174. , 

Kesha vbhat v. Bhagirathibai, 498. 

Kesho Prasad v. Sheo Pargash (44 All. 
19), 228. 

V. Sheo Pragash (51 I. A. 

381), 230. 

Ram V. Musammafc Bam Diilari, 

379. 

Rao V. iSadasivo Rao, 10, 15. 

Keshub Ran\ v. Nand Kishore, 418. 
Kesserbai v. Hunsraj, 120, 141, 145, 151, 
153, 162, 484, 487, 488. 

V Valab, 43, 77, 78, 79, 87. 

Keval V. Ganpati, 344. 

Khair Muhammad v. Umar, 230. 

Kliajeh Solehman Quadir v. Nawab Sir 
Salimullah,. 455. 

Khalilul V. Gobind, 374, 382, 384. 

Kahman v. Gobind Pershad, 

378, 381. 

Kharag Narain v. Janki Bai, 304, 315, 
325, 333. 

I Kharidai* Kai>i’a Co. v. Paya Kishen, 
268. 

Khatubai v. Mahomed, 633. 

Khawani Singh v. Chefc Bam, 194, 212. 
Khazana Mai v. Jagan Kath, 276. 

! Khemchand v. Narain Pas, 291, 317, 385. 

Khemkor v. IJmiashankar, 531, 

I JChcrodemoney v. Poorgamoney. 458. 

I Khetramani v. Kashinath, 604. 

Khetro Mani Pebya, In re, 213. 

I Khettcr Chunder v. Hari Pass, 512. 

I KJiimji V. Morarji, 472. 

V. Narsi, 529. 

Khitesh Chandra Chakrabarti v. Emperor^ 
622, 623. 

Khodabhai v. Bahadhar, 43. 

Khoja’s and Memon’s case, G30, 631. 
Khub Lai v. Ajodhya, 181, 182. 

Singh V. Ramji Lai, 582. 

Khudiram v. Bonvarilal, 532. 

I Khunni Lai v. Gobind, 427. 

V. Govind Krishna, 2, 101,. 

208, 209. 

Khurshedji v. Pestonji, 442. 



XXXll 


TABLE OF CASES. 


K — contd. 

Khushalcliand v. Bai 'Mani, 522. 
V. Ibrahim, G43. 

• V, JIahadevgiri, 400. 

Khwaja Muhammad Klian v. Husaini 

Begam, 518. 

Kidar Nath v. Mathu Mai, 199. 

King Emperor v. Satnarain, 137. 

Kirpal "v. Sukurmoni, ,36. 

Singh V. Balvant Singh, 385. 

Kisanji v. Lukshmi, 616. 

Kishan Chand v. Narinjan, 456. 

• Dei V. Shoo Paltan, 520. 

■ 1*1 V. Muhammad Ishaq, 169. 

V. Ram Chandar, 296. 

Sarup V, Brijraj, 351, 352. 

Kishen Parshad v. Har Narain Singh, 

279. 293. 294, 295, 297, 299. 

Sahai v. Raghunath, 284, 376, 

Singh V. Chhajju Singh, 349. 

Kishori v. Moni Mohun, 400, 435, 438. 

Dubain v. Mundra Dubain, 483. 

Kiahun v. Tipan Pershad, 374. 

Pershad v. Tipan Pershad, 377, 

378, 381. 

Koer Goolab Singh v. Kurun Singh, 102. 

Hasmafc Eai v. Sunder Das, 326. 

Kojiyadu y. Lakshmi. 41, 43, lOO. 
Kollanay v. Luchmee, 453. 

Kollany v. Luchmee, 484. 

Konammal v. Annadana, 637, 042. 
Kondal Row v. Swamulavaru, 107. 
Kondama Naicker y. Kandasamy Goun- 
dar, 196. 

Kondapalli Sudarsan Rao v. Pufcta 
Dalayya, 595. 

■ Vijayaratnam v. Mandapaka 

Sundarsana Rao, 449. 

Kondappa v. Snhba, 183. 

Konnerrav v. Gurrav, 275, 392. 

Konwar Doorganath v. Ram Chunder, 
495, 512. 

V. Ramehunder, 

493, 500, 503. 

Roy y. Ram 

Chunder Sen, 501, 512. 

Kooer Goolab Singh v. Rao Kurun 
Singh, 193, 227. 

Kooldeb Narain v. IVooma, 448. 
Koonjbehari v. Peremohand, 486. 


K — contd. 

Koonwur Bijoy v. Shama Soonduree, 
340. 

Korban Ally v. Sharoda, 11. 
Kotarbasappa v. Chanverova, 484. 
Kotaj'ya v. Annapurnamma, 28. 

V. Krishna, 410. 

KottapalLi Lakshminarayana v. Kanu- 
parti Hanumantha Rao, 383. 

Kounla v. Ram Huree, 341. 

Krishendra v. Debendra, 402. 

Krishn Das v. Nathu Bam, 281, 289, 290. 
Krishna v. Balaram, 411. 

V. Krishnasami, 265, 277, 301. 

V. Nagamani, 594. 

V. Paramshri, 562, 503. 

V. Sami, 106. 

V. Subhanna, 392. 

y. Vasudev, 276. 

V. Venkatarama, 48, 49, 50, 59. 

Bai V. Secretary of State. 160. 

Chandra v. Ratan Ram, 593. 

Das V. Nathu Ram, 201, 287, 

382. 

Lai V. Nandeshwar, 127, 401, 

410, 423. 

Mahatarba y. Baban Rambhan, 

214. 

Mndaliar v. Marimuthu Mudaliar 

& Ors., 32. 

I'ratap Singh v. Prembada 

Kunwar, 186, 187. 

Rao V. Benabai, 472. 

V. Sundara Siva Rao, 449. 

Krishnabr.i v. Kesbav, 78 

V. Khangouda, 395. 

Krishnabihari y. Sarojinee, 154. 
Krishnagiri v. Shridhar, 505. 

Krisfinai v. Shripati, 141. 

Krisimaji v. ITaumaiaddi, 297. 

V. Moro Mahader, 252, 267, 

269. 

V. Pandurang, 13. 

V. Sitaram, 307. 

V. Vithal, 361, 362, 367. 

Hanmant v. Raghavendra 

Keshav, 536. 

Lakshman v. Vithal, 377. 

Raghunath v. Rajaram Trim- 

bak, 558. 



TABLE OF CASES 


xxxiii 


K — contd. 

Erlshnamachariar v. K.rishnamachariar, 
448. 

Krishnamurfchi v. Krishnamurthi, 450, 

573, 575, 576. 

• 

Krislinauiurthy v. Sundaramiirthy, 310. 
Krishnan v. Sami, 351 . 

Krishnanand T. Raja Bam, 277, 352. 
Kriahnarao v. Shanltarrao, 554, 556. 
Krishnasami v. Bajagopala, 249. 

V. Ramasami, 372. 

Krishna.shct v. Hard, 277. 

Krishnaswami v. Pulukanippa, 410. 

Ayyar v. Ramaehandra 

Bao, 487. 

V. Ramaswami, 349. 

ICrishnayya v. Picliamma, 49, 69. 

— . — „ — ^ — Rao V. Raja of Pitapur, 552. 
Krishnayyan v. Muftusanii, 397. 
Kristayya v. Narasimham, 425. 

Kristo Bhabiney v. Ashutosh, 400, 436. 

Kissor V. Kadermoye, 588. 

Kristoromoni v. Narendro, 464, 465, 
474. 

Kudomee v. Joteeram, 531. 

Kulada v. Haripada, 427. 

Prasad v. Haripada, 7, 14, 349. 

V. Kali Das, 494. 

Prosad v. Kali Das, 495. 

Kuldip V. Ram Bujhawan, 373. 

Kuloda Prosad v. Jagcsliar, 013, 022. 
Kumara Asima v. Kumara Krishna, 
471, 479. 

Kumarappa Chettiar v. Adaikalam 
Chetty, 417. 

— V. Saminatha, 391, 

Kumnd v. Bamesh, 550. 

Kundan v. Secretary of State, 39, 154, 
169, 197. 

Lai V. Beni Prasad, 600. 

Knnhali t. Keshava, 360, 305, 367. 

Knnj Bihari Lai v. Laltu Singh, 182. 
Kunja Bjhari v. Tarapada, 645. 

Lai V. Narsamba, 647. 

Kunwar Bahadur v. Madho Prasad, 35. 

Basant Singh v. Kunwar Brij 

Raj S.aran Singh, 503. 

Kuppa V. Dorasami, 508. 

T. Singaravclu, 60S. 

Kuppan Chettiar v. Masagoundan, 349 
413. 


K — concld. 

Kuppusami Pillai v. Jayalakshmi Ammal, 
470. 

Kusum Kumari v. Satya, 0. 

V. Satya Ranjan, 560. 

Kuta V. Kuta, 431. 

Ivuthapcrumal v. The Secretary of State 
for India, 654. 

Kutti V. Radakrishna, 159. 

L 

Labha Mai v. Malak Ram, 594. 

Lacchan Kunwar v. Manorath Bam, 231. 
Lachhan Singh v. Jhagar Singh, 47. 
Lachho Bibi v. Gopi Narain, 448. 
Lachman v. Sanwal, 428. 

— Das V. Giridhur, 374. 

V. Khunnu Lai, 350. 

Prasad v. Snruam Singh, 288. 

Lachmi v. Janki, 425. 

V. Kunja Lai and anr., 300. 

V. Musammut Parbati, 540. 

Chand v. Lachho, 215. 

Narain v. Kishan, 330. 

V. Musaddi Lai, 254. 

Lachmin Kuar v. Debi Prasad, 259. 

Ladu V. Gobardhan Das, 350. 

Labar Puri v, Puran Nath, 504. 

Lajwanti v. Safa Chand, 231. 

Lakhman v. Narayan, 422. 

Lakhmi Chand v. Gatto Bai, 058. 
L^khpati v. Rambodh, 227. 

Lakhu Mai v. Bishen Das, 375. 
Lakshimoni v. Nittyauanda, 441. 
Lakshmadu v. Rainudu & Ors., 357, 363, 
368. 

Lakshmakka v. Boggaramanna, 464. 
Lakshmappa v. Ramawa, 582. 

Lakshman v. Gopal, 315, 428. 

V. Jamnabai, 259. 

V. Radhabai, 185. 

V. Bamchandra (5 Bom. 48, 

7 LA. 181), 250, 302, 449. 

T. Ramchar.dra (1 Bom. 

561). 392. 

V. Salyabiiamabai, 603, 622, 

624. 

Bhau V. Radhabai, 681. 



XXXIV 


TABLE OF CASES. 


L — contd. 

Lakshmana v. Siva, 39. 

— Rau V. Lakshmi, 581. 

Lakshmanan Chettiar v. Srinivasa 
Iyengar, 255, 319, 411. 
Lakshmanaswami v. Raghava Charjulu, 
352, 383. 

Lakshmappa ^v. Ramava, 523, 560, 5G8, 
585, 665. 

Lakshmi v. Anantharama, 46, 167,227. 

V. Dada, 79. 

V. Kalian Singh, 524. 

V. Subranianya. 450, 553. 575. 

— Chand v. Annandi, 449. 

. — — V. Gatto Bai, 538, 565. 

Prasad Singh v. Kunai Singh, 

196. 

Lakshmibai v. Ganpat, 246, 407. 429. 

V. Jayram. 78, 81. 

V. Rajaji. 542. 

V. Ramchandra, 567. 

V. Sarasi'atibai, 548. 

V. Shridhar, 590. 

V. Vishnu, 549. 

Lakshmichand v. Anandi, 100, 431, 432, 
616. 

Laljshmmarayana v. T)aau, 180. 

V. ValUammal, 474. 

I^akshmindrathirtha v. Raghavendra, 
503. 

Lakshmishanker v. Vaijnath, 490, 491. 
Lai Achal Ram v. Kazim Husein, 583. 

Bahadur v. Ambika Prasad, 330, 

331, 372. 

■ V. Kamleshar, 289. 

V. Eanahaiya Lai, 246, 

249, 252, 253, 263, 

• V. Sispal, 395. 

Chand v. Ramrup Gir, 515. 

Hari Har Pratap Baksh v. Raja 

Bajrang Bahadur, 30. 

Ram Singh v. Deputy Commissioner 

of Partabgarh, 248. 

Sheo Pertab v. Allahabad Bank, 160. 

Singh V. Deo Karain Singh, 371. 

V. Jagraj Singh, 359. 

V, Pulandar ,Singh, 380. 

Lala Baijnath Prasad t. Ram Gopal 
Lachmi Karayen, 264. 

Buuseedhm- v. Bindeseree, 286. 

— ■ — Maheshwari Prasad v. Mst. Sahde 
Kunwar, 619, 621, 622. 


I 


I 

i 

I 


L — contd. 

Lala Muddun Gopal v. Khikhinda Koer, 
252. 

Narain Das v. Ramanuj, 594. 

Ramjewan v. Dal Koer, 476, 484, 

488. 

Rup Chand v. Jamhu Pansnad, 656, 

659. 

Soniram v, Kanhaiya Lai, 166. 

Suraj V. Gulab Chand, 380. 

Prosad v, Golab Chand, 365. 

Lalchand v. .Sheogovind, 300. 

Laldas v. Motibai, 233, 254, 338. 

Laii V. Slurlidhar, 582. 

Lalit Mohan v. Dayamoyi, 219, 220. 

Mohun V. Chukkun Lai, 460, 474, 

477, 488. 

Lalita Devi v. Ishar Das, 450. 

Prasad v. Sarnam Singh, 585. 

Laljeet v. Rajcoomar, 393, 420. 

Lalji V. Keshowji, 297, 

Lall Behary v. Thacomoney, 645. 

Lalla V. Koonwur, 600. 

Gunpat V. Toorun, 282. 

Lallu V. Tnbhuvan, 344. 

.Singh V. Gur Xarain, 442, 445. 

Pallubhai v. Cassibai, 28, 29, 76, 78, 80, 
81. 

V. Mankuvarbai, 13, 79, 465. 

Lalta Prasad v. Dwarka Prasad, 226. 

V. Gajadliar Shukul, 347, 

348. 

V. Sri Mahadeoji, 251, 409, 

449. 

Latchumammal v. Gangammal, 40. 
Latta V. Avadi Naresh Singh, 286. 
Laxman v. Vmaj'ak, 299, 346. 

Laxmava v. Rachappa, 594. 

Laxmibai v. Keshavrao, 574. 

Ganapatrao v. Radhabhai 

Kxishnaji, 614. 

Laxminarayan v. Dinker, 274, 317. 
Laxmipatirao v. Venkatesh, 564. 

Leake v. Robinson, 472. 

Limba v. Rama, 506. 

Limbaji v. Rahi, 600. 

Lingangowda v. Basangowda, 295, 2'.l<i, 
299. 

V. Tulsawa, 79. 

langappa v. Esudasau, 7, 30, 608. 

Rayappa v. Kadappa Bapnrao 

558, 642. 



TABLE OF CASES. 


XXXV 


L — concld. 

Jjingayya v. Chengalammal, 56]. 

— V. Kanakamma, 614. 

Chetty V. Chengalammal, 665. 

Lloyd V. Y^bb, 478. 

Lochu^ Singh v. Nemdharee Singh, 243. 
Lowji V. Mithabai, 55. 

Luchmeedhur Sin^h v. Ekbal Ali, 201. 
Luchmun v. Kalli Churn, 132. 

Dass V. Giridhur, 362, 377, 

378, 381. 

Dasfe's caF5e, 381. 

Lulloobhoy v. Cassibai, 162. 

V. Z^Iankuvarbai, 162. 

Lunkurn v. Birji, .508. 

Lutchmanen v. Siva, 266, 297, 298. 
Luximon Row v. ISIuUar Row, 259. 

•M 

Ma Yait v. Slahomed, 160. 

V, Maung Chit, 7, 8, 15. 

Macdonald v. Lalla Shib, 341. 

Macduff, In re, 490. 

Madan Gopal v. Sati Prasad, 320. 

Lai V. Chiddu, 325. 333. 

T- Oajendra Lai, 333. 

V. Gajendralal, 3*25. 

V. Kishan Singh, 294. 

Mohan. Dhur v. Thakur Sree Sree 

Xatai Gour Jew, 224. 

3ladana Mohana v, Purshothama, 553, 
556. 

^ladanmohan v. Rakhalchandra, 182. 

V. Shah, 389- 

Madari v. Malki, 227, 

Madhav Sang Haribhai v. Pipoany 
Jijibhai, 55S. 

Jladavarayya v. Tirtha, 484. 

Madhavram v. Pave, 78, 84, 162, 163. 
Madhavrao v. BaLabhai, 468, 478. 
Madhavrav v. Gangabai, 620, 

Madhgouda Babaji v. Elalappa Balappa^ 
295. 

Madho Das v. Kamta Das, 504. 

-Parshad v. Merhban Singh, 303, 

324, 325, 327, 345, 3S(h 423. 

— Tcwari v. iMata 1 )in Tewari, 262. 

Madhub rhundor v. Raj Coomar, 4. 
Madhusudan v. Bhagwan, 294, 372, 
V. Iswari Dayi, 357, 

— V, Ramji, 250. 


M — contd. 

Madhwa v. Venkataramanjula, C47. 
Madivalappa Irappa v. Subbappa 

Shaiikarappa, 220. 

Madwalappa Irappa Subbappa 

Sbankarappa, 23. 

JMaha Deo v. liambir ^ingh, 363. 

Jlayadasee v. Abdur Rabim, 624. 

Mahabalya v. Timaya, 307, 309. 

Mahabeer Peraad V. Raniyad, 301, 325, 
327. 

Mahabir v. Siri Xarayan, 382. 

T. Sukh Ram, 375. 

Prasad V. Amla Prasad, 267. 

283, 291. 

V. Basdeo Singh. 361, 

362, 3G3, 384. 

V. P.aj Bahadur Singh, 

12, 13, 36. 

. — ^ — Paddar v. Ram Jahal 

Mandar, 322. 

Mahableshwar v. Durgahai, 552. 

T. Ramchandra. 597. 

T. Subramanya, 569. 

Mahadei v. Baldeo, 219. 

Mahadeo v. Bissessar, 286. 

Prasad T. Mata Prasad, 204. 

V. Musammat Dhanraj, 

18G. 

Singh T. Karia Bharti, 

499, 515. 

Mahadev v. Govind, 422. 

Y. Lakshman, 394. 

•Mahadevappa t. Basagawda, 40. 

Mahadii v. Bayaji, 563. 
Mahalakshamamma v. V eukataratnam- 
raa, 628. 

Mahalakshmamma v. Suryanarayana, 
430. 

Mahamaya Basee V. Abdur Rahim, 646, 
Mahammad Sa’id v. Kunwar Dar.shan, 
191, 192. 

Mahant Basant ■v. Hem Singh. 7. 
Mahanth Biseshwar Bai^s v. Sashinath 
Jha. .514, 51<i. 

Ramdhan Pari v Mat. Parbati 

Ivupr. .702. 

Tiamji V. Lacliliu, 505. 

Mahantha Jai Hrishna v. Bhnkhal, 500.* 
Maharaj Singh v. Balwanfc Singh, 355, 
362. 



XXXVl 


TABLE OF CASES. 


M — contd. 

Maharaja Kesho Prasad v. C'.handrika, 
197. 

- of Benares v. Ramkumar, 383. 

of Bohbili V. Venkataraman- 

jula, 305, 309, 
311. 

V. Zamindar of 

Chundi, 270. 

of Kolhapur v. Sundarain, 1, 

37, 537, 560, 
664, 665. 

V. Sundaram 

Ayyar, 602. 

Maharajadhiraj Kameshwar Singh Baha- 
dur V. Benimahadeb Singh, 221. 
Maharajah Pertab Narain v. Subhao 
Kooer, 453. 

Maharaua ,Shri Ranmalsangji v. Kundan 
Kuwar, 621. 

Maharani Hemantha Kumari v. Gauri 
Shankar Tewari, 494. 

JIahashoya v. Shrimati Krishna, 664. 
Mahatab Singh v. Badan Singh, 635. 
Mahdo V. -Mehrbau, 412. 

Mahesh v. Dirgpal, 021. 

Maheshar v. Ratan Singh, 189. 
Maheshwar v. Kishun, 381. 

Mahim Chandra v. Hara Kumari, 481, 
494. 

Mahna Singh v. Thamau Singh, 133. 
Mahomed Buksh v. Hooseini Bibi, 442. 

Ha]i Abu v. IChattubai, 633. 

Jusab V. Haji Adam, 033. 

Shumsool V. Shewukrani, 202, 

453, 461, 484, 485, 488. 

. Shumoool’s case, 480. 

. Sidick V. Haji Ahmed, 630, 

631, 032, 

Yusuf V. Hargovandas, 458. 

Mailathi v. Subbaraya, 14. 

Majmudar Hiralal v, Karsilal, 645. 
Makhan Lai v. Gayan, 182, 187. 
Blakundi v. Sarabsukh, 282. 

Mala Mai v. Gori, 276. 

Malak Chand y. Hira Lai, 324.^383. 
Malakchand v. Hira Lai, 200, 2;2. 

. Malgavda v. Babaji, 548. 

Mallaijpa T. Anant Balkrishna, 592. 

V. Gangava, 502. 

V. Hanmappa, 553. 

Malleaam y. Jugala, 354. 

Mallik Saheb v. Malhk Arjunappa, 193. 


M — contd. 

Mallikarjungowda-Mudragowda v. Ven- 
kawa Kamachandrappa, 220. 

Mami v. Subbarayar, 546. 

Man Bhari v. Naunidh, 442. 

Singh V, Gaini, 102. 

V. Nowlakhbati, 214, 217. 

Mana.sharam Das y. Ahmed, 599. 
Manathunainath Desikar v. Gopala 
Chettiyar & Ors., 509. 

Maneharam v. Pranshankar, 500, 507, 
508. 

Mancherji v. Kongseoo, 652. 

Manc hharam v. Dattii, 401. 

Mandakmi v. Adinath, 555. 

Mauck Chand v. Jagat Settani, 658. 
Mangala v. Dinanath, 625. 

Mangaldas V. Abdul, 630, 631, 632, 633. 

— v. Krishnabai, 455. 

V. Tnbhuvan Das, 472. 

Mangamma v. Doraiya, 486. 

Mangat v. Bharto, 617. 

Mani I.al v. Kikabhai, 300. 

Manibhai v Shankerlal, 246. 

Mamck Chand v. Jagat Settani, 50, 71. 
Manickam v. Ramalinga, 166. 
Manickamala v. Nandakumar, 556. 
Manigavri v. Narandas, 446. 

ManiUa v. Ellappa, 625. 

MamUamala v. Nandakamar, 554. 
Manikbai v. Gokuldas, 569. 

Manikka v. Balagopala Krishna, 504. 
IVIaniklal v. Kisni, 187. 

Y. Mancherji, 458. 

Manikyamala v. Nanda Kumar, 463, 
465. 

Manilal v. Bai Rewa, 128, 143, 145, 146, 
162. 

V. Bai Tara. 627. 

Hurgovan, In re, 699, 600. 

Maniram v. Keri Kolitani, 165. 
Manishankar v. Bai Muli, 593. 
Manjamma v. Padmanabhayya, 472. 

Y. Sheshagirirao, 564, 

Manjauatha v. Narayana, 403. 
Manjappa v. Lakshmi, 604. 

Manjaya v. Sheshgiri, 212. 

V. Shanmuga, 305, 309, 310. 

Manki v. Kundan, 41. 

Manmohini v. Balak Chandra, 606. 

1 Manna Lai v. Karu Singh, 284, 303, 324. 



TAB1.E OE CASES. 


XXXVll 


M — contd. 

Manohar v. Lakbmiram, 492. 498, 510. 
511. 

j_^l V. Banarsi Baa. 538, 658, 

•059. 

► Mukherji v. Bhupendianath 

Mukherji, 455, 464, 509. 

Manorama v. Kali Cliaran, 491. 

V. Kalicharan, 481, 490. 

Mansha v. Jiwan, 012. 

Marappa v. Bangasami, 323. 

Mareyya v. Ramalakshmi, 563. 

Maroti v. Badhabai. 565. 

JVIartand v. Badhabai, 417, 418. 

. Bao V. Malhar Kao, 035. 

Maru V. Hanso, 213. 

Mai'udamuthu v. Kadir Basha, 277. 

V. Shrinivasa, 193. 

Marudappan v. ifiraikulathan, 385. 
Marudayi v. Doraisami, 21, 35. 

Marudazi v. Dorasami, 429 
Manifchappan v. Niraikulatban, 347. 

Marubi v. Babaji, 307. 

V. Rama, 428. 

Masit-Ullah v, Damodar Prasad, 287, 
290, 350, 382. 

Mata Din v. Gaya Din, 3()4, 305. 

V. Ram Lakhan, 383. 

Prasad v. Nago.shar Sahai, 210, 220, 

222, 227 , 229. 

Matangini v. Jogendva, 611. 

Mathia T. Appala, 315. 

Mathura v. Esu, 504. 

v". Rajkumar, 324, 350. 375. 

. Das V. Bhikhaii Mai, 453. 

Math V. Lakhi Narain, 455. 

Matru Mai v. Mehcri Kunwar, 140, 160, 
220, 488. 

Matungini v. Ram Button, 39. 

Mayna Bai v. Uttaram, 150. 

Mayor Lyons v. Adv.-Genl. of Bengal, 
510. 

MeDoweU & Co. v. Ragava, 384. 

Md. Sadik v. Khedaii Lai, 295. 

Mcdai Dalavoi v'. Aamar Tcvan, 201, 
290. 

Jledni Prasad v. Akanii Keslnvar, 300. 
Mecnalishi v. Muniandi, 156. 

V. llama Aiyar, 618. 

V. Somasundaram, 506. 

Ammal v. Mutugayya Moop- 

panar, 150. 


M — contd. 

Meenakshisundaram Chetty v. Ranga 
Ayyangar, 594. 

Meguh Rai v. Ram Khclawan, 226, 227. 
Merla Ramanna v. Chelikani Jagannadha 

Kao, 413- 

Mesrarv- v. Girjanundan, 225. 

Metharam v. Rewachani, 259. 

Mian Karim Bakhsh v. Dargah Pir, 370. 
iliUer V. Runganath, 2S0, 282. 

Minakshi v. Chiniiappa, 023. 

V. Bamanada, 500. 

V. Virappa, 450. 

Kaidu V. Immudi, 361, 363, 

367. . 

Mir Mahomed Mazuffer V. Kishori 
Mohun, 051. 

— -Sarwarjan v. Fakrudin, 594. 

Mira Bivi v. Vcllayanna, 16. 

Mirza Kurtutulam v. Xuzbat-ud-Dowla, 
458. 

3Ial V. Rameshwar, 269. 

Mitar Sen Singh v. Matlbul Hasan Khan, 
100. 

Mithibai v. Meheibai, 488. 

Mitta V. Neerunjun, 500. 

Ivunth V. Keerunjun, 389. 

Modhoo Dayal Singh v. Golbui Singh, 
326. 

Modhn Sudan v. Kooke, 196, 198. 

Mohan v. >Iadhsudan, 505. 

Lai V. Bala Prasad, 357. 

V. Niranjan Das, 488. 

Lalji v-. Gordhan Lalji, 506. 

V. Madhsudan, 509. 

• Mohandas v. Krishnabai, 67. 

Mohanlal v. Jagjnvan, 196. 

V. Bam Dayal, 416. 

Mohaub Gadadliar v. Ghana Sbyam Das, 
384. 

Mohanund v. K'afur, GOO. 

Mohar Singh v. Het Singh, 496. 

Mohendra Nath v. Kali Prosliad, 654. 

V. Sliamsunncssa, 208, 

220. 

Mohendrololl v. Kookiiiey Dabee, 543, 
Mohesh v. Tarnck, 53 i . 

t'handcr v. L'hiuider Mohun, 

102. 

Cliuiidor V. Koylash Chunder, 

510. 

T. Satrughan, 642. 

Mohib All Khan v. Baldeo Prasad, 285. 
Mohieswara v. Durgamba, 621. 



XXXVlll 


TABLE OF CASES. 


M — contd. 

Jitohim Chunder v. Kushi Kaiit, 132. 
jMohima Chunder v. Lui'ga llonee, 137. 
>lohinee Mohaa Basu v. Bash Biharee 
Ghosh. 127, 170. 

Mohun Pershad v. Kishcn, 150. I 

Tiloithiyan v. Ayissa, 441. 

Slokhada t. NuSido Lall, COG. 

Mokooud V. Nobodip, 591, 592. 

Jtokooiido Lall v. Gonesh Chunder, 403, 
477, 480. 

Mondaldm t. Adinath, 551. 

Lasi V. AdiiiaLh Ley, 541. 

Monirani v. Ben Bolitani, 12, 39, 100, 
167, 616. 

Monomohini Dasi v. Hari Prasad, 589. 
Mootka Bono v. Ammakutti Animal, 1. 
■Moolchand v. Chahta Devi, 105. 

Moolji V. Gokuldas, 262. 

Moosa V. Haji Abdul, 520, 632. 

Moosabhai v. Yacoobhai, 442. 

Mootia V. Uppoii, 509. 

Morarji v. Administrator-General, 5. 

V. Benbai, 491. 

Morioe v. The Bishop o£ Durham, 490. 
Uloro Barayan v. Balaji, 581. 

Vishvanath v. Ganeah, 236, 237, 

260, 428. 

Morrison v. Verschaylo, 265. 
Mothoormohun v. Soorendro, 587. 

Moti V. Laldas, 191, 212. 

Jlotilal V. Advocate-General of Bombay, 
485, 488. 

V. Bai Chanchal, 533. 

— V. Lalchand, 296. 

Motiram v. Lalchand, 294. 

Motivahu v. Maniubai, 454, 476, 477, 
481. 

— v. Purshotam, 650. 

Mouji Lai V. Chandrahati, 518. 

Moulji Lai V. Chandrahati, 629. 

Moulvie Sayyud v. Mussumat Bebee, 
648, 649. 

Mst. Anuragi Buer v. Parmanand 
Pathak, 505, 506, 509. 

Bh-agwani v. Mohan Singh, 260, 

417. 

Bhiigvati V. Jasiadam, 208, 166. 

Bliikuo Boer v. t!haincl.i Boer, 58H. 

Blioli Bai v. Dwarka Das, 390, 392. 

Bhoobun Moyee v. Bam Bishore, 

554, 


M — contd. 

Met. Brij Kunwar v. Bai Bahadur Pandit 
Sanketa Prasad, 247, 262. 

Draupadi v. Vikram, 557, 580. 

Ganga v. Ghasita, 134. 

Golab Boonwar v. Colleetor u.' 

Benares, 605. 

Haidri v. Narindra, 610. 

Hardei v. Bhagwan Singh, 205, 206. 

Indi V. Ghania, 521, 591. 

Jmd Baur v. Indar Singh, 103. 

Jio V. Mst. Eukman, 483. 

Jiwani V. Muia Bam, 521. 

Kasarbai v. Inder Sinch, 16. 

Knesarbai v. Inde Singh, 538. 

Lafcipati v. Parameshwar, 255. 

iialan v. Paramatmadas, 183. 

JIaluka V. Pateahar, 231. 

MauU V. Brij Lai Jt Ors., 277. 

Menda Knar v. Mirtunjai Bakhsh, 

418. 

Nanomi v. JIadun, 381. 

Babuasin v. Modun Mohun, 

363, 365, 356, 360, 367. 

Parbati Knnwar v. Chandarpal 

Kunwar, 641. 

Ram Kuar v. Atma Singh, 477, 488. 

Seethahai v. Hari, 230. 

Sirthaji v. AlaguUpadhia,240, 244. 

Sujan Devi v Jagiri Mai, 77. 

Sundar v. Parbati, 40. 

Suraj V. Attar, 6. 

Tara v. Sarup, 624. 

Thakro v. Ganga Pershad, 649. 

Thakur Deyhee v. Bai Baluk Bam 

120, 159, 520. 

Tulsha v. Lachhman Prasad, 182. 

. — — Utta m V. Dina Nath, 467. 

Viranwali v. Kundan Lai, 226 227. 

Mt. Barfo v. Narain Prasad, 167. 

Champa V. Official Receiver, Karachi 

265, 322, 624, 626. 

Dilraj Kuari v. Bikheswar Ram 

Duba, 105. 

Gaya Devi v, Mt. Tulsha Devi, 40. 

Lado V. Banarsi Das, 667. 

Muniiibibi v. Badhay Shiam, 623 

Nandau v. Wazira, 228. 

Praldiavati Buer v. Bam Satan Lai 

624. 

Bameslnvar Buer v. Sheo Tjil 

Upadhya, 174. 



TABLE OF CASES. 


XXXIX 


M — contd. 

Mt. T!a.ni Labhai v. Durga Daa, 591. 

Ramjhari Kuer v. Sheonarain Singh, 

221 . 

Rajpali JCunwar v. Surju Rai, 45, 46, 

2 0 , 8 . 

Sahodra v. Ram Babu, 45. 

Sattan v. Janki 40. 

Sham Devi v. Mohan Lai, 614. 

Shibbi V. Jodh Singh, 629. 

Widyavati v. Jit. Kahmat Bi, 22S. 

Muchoo V. Arzoon, 591. 

Muddan Thakoor v. Kanfco Lall, 356, 361 
Muddun Gopal v. Ram Buksh, 247, 248, 
249. 

Lai V. Komul Bibee, 492. 

V. Sreemuttv Komul Bibee. 

495. 

—Thakoor v* Kanfcoo Lall, 286, 

366. 

Mudit V. Ranglal, 273, 280, 282. 
Muhammad v. Brij Bihari, 190, 193. 

V. Mithu Lai. 333, 334. 

V. Radhe Ram, 274. 

Allahabad v. Muhammad 

Ismail, 534. 

Hussain Khan v. Babu 

Kiahwanandan Sahai, 23, 
240, 245. 

Ibrahim v. Shaikh Ibrahim, 

17. 

Khan v. ,Sjs Banoo, 103. 

Mumtaz v. Zubaida Jan, 442. 

^ Sa id V. Kunwar Darshan, 

194. 

Mukund v. Balkrishna, 310, 411. 

Singh V. Wajirruddin, 329. 

Mulla V. Partab, 617. 

Mulohand v. Bhudhia, 522. 

Mulgaund Co-operative Credit Society v. 

Shidlingappa Ishivarcppa, 300. 

Mulji V. Bai Ujam, 615. 

V. Cursundas, 79. 

Mulraz v. Chalekany, 451. 

Munia v. Puran, 137. 

Munni Lai v. Phula, 127. 

— ^ V. Shiama, 524, 666. 

Muniswami v. Kutti. 348. 

Muniyandia v. Muthusami, 384. 
lilunshi Lai v. Slav Devi. 183. 

Murari v. Mukund, 416. 

V. Tayana, 592, 595. 

Lai V. Kundau Lai, 582. 


M — condd. 

Muraiji v. Parvatibai» 102. 

Murarrao v. Sitaram, 309. 

Murbi V. Uhammar, 287. 

Murgcppa v. Kalawa, 551. 

Murtaza Hussain Khan v. Mahomed 
Yasin, 63(5. 

iMuragappa v. Nagajipa, 56¥. 

Murugayi v. Viramakali, 617. 

Murugesam v. jMaiiickavasaka, 286, 503. 
Musaclee Mahomed v. Meerza Ally, 649i 
Musamraather Xaraini Kunwar v. Sojjan 
Palsing & Ors,, 166. 

iMussauunat Lorandi v. Msfc. Nihal Devi, 

21 . 

Suraj V. Attar, 39. 

Mussamutt Doorga Bibee v. Janki, 49. 
Musst. Bodha Kuer v. Musst. Sohodra 
Kuer, 104. 

Mutsaddi v. Kundan I>al, 554. 

MutasoMdi Lai v. Kundan Lall, 541, 542, 
543. 

Muteeram v. Gopal, 182. 

Muthappudayan v. Ammani, 116, 149. 
Mufchu Ramarkrishna v. Jlarimuthu, 131. 
Muthukaruppa v. >Sellathammal, 136. 
Mufehukumalli Ran'^ayya v. Uppalapati 
Lakshmaj’jM, 208, 212. 

Muthukumara v. Anthony, 445. 

vSalhapathiar v. Siva- 

narayana Pillai, 311. 

Muthusami v. Masilamani, 524, 664, 666. 

V. Meenammal, 100, 105. 

V. Muthukumarasaini, 59, 

• 60.71. 

— — - — -- - - V. Nallakulantha, 417. 

V. Pulavaratal, 544. 547. 

V. Simambedu, 49, 50, 00. 

Muthusamier v. Sreoraeblianithi, 500. 
Muthuveeru v. VytluUnga, 160, 103. 
Mutsaddilal v. Sakhir Chand, 277. 
Muttayan Chettiar v. Sangili, 361. 

Muttia V. Virammal, 623. 

Mutba v'. Dora Ringa, 41, 42, 159. 
Muttayan v. Zaiaindar of Sivagri, 347. 
Mutbukaiiiiu V. Paraniasanimi, 564. 
Muttuswamy Jagavera v. Vencataswara, 
(iOS. 

Mutl-uvaduganadha v. Periasaini, 42. 

Tevar v. Periasami, 

039, 640. 

Myna Boyee v. Ootaram, 6, 156 



xl 




TABLE OF CASES 



^abalciahorc v, Lpcndra Kishoro, 174, 
177, 185, 197. 

Kabakumar v. Jlhabasundari, 188. 
Xachiappa v. Rangasami, 47. 
Xachiinuthu Ooundan v. Balasnbra- 
mania Gonndan, 370. 

Xafor Chancfi'a v. Ratan, 480. 
Nagabhu.shanain v. Slieshammagaru, 

^ 53(5. 

!Nagalinga v. Subbiraraaniya, 393. 
Nagalingam v. Ramchandra, 243, 247, 
248. 

Xagalutclimce v. Gopoo, 440, 449. 

— V. Gopoo Nadaraja, 26, 

449 : 

Nagamma v. Virabhadra, 016. 

Xacammal v. Sankarppa, 536. 

Kagendra v. Amar Chandra. 270. 

V. Pyari ^[ohan, 315. 

Xagendrabalo Lasscc v. Panchanam 
Mourie. 221, 

Kagcsh. T. Gururao, 155. 

Nagcehar v. Ganesha, 417. 

Bakhsli Singh v. CJanesha, 

260, 261. 

Nagindas v. Baohoo, 568, 572. 

■ - — Gokuldas v. Bliimrao Oamu, 
601. 

V. Mahomed, 283, 284. 

Nahalchand v. Hemchand, 78, 80, 83. 
Najju Khan v. Imtaz-ud-din, 272. 
Nakshetramali Devi v. Brajsundor Da«i, 
454. 

Kalinaksha v. Rajani, 7, 88, 524. 
Kallayappa v. Ainbalavana, 501. 

Nalluri v. Kamepalli, 537. 

Naman Lai v. Har Bhagvan, 201, 202. 
Nainmalwar v. Thayarammal, 137. 

Nana v. Appa, 307. 

• V. llamchandra, 35, 75, 390, 

Narain v. Huree, Punth, 243. 

Nanabhai v. Achratbai, 244, 247, 262. 

— V. Janai’dlian, 522, 523, 588. 

V. Nathabliai, 425. 

Naiiak Cliand v. Baiiarr<i Da.s, 292. 
Nanalal v. Harlnchand, 491. 

Nanchand B!i.p\isahel), (>45 
Nand Kishorc v. Ahmad Ata, 654. 

Kumari Devi v. Bulkan Devi, 27. 

— — Kumar Dutt v. Ganesh Das, 511. 


N — contd. 

Nand Lall v. Umrai, 359, 376. 

Kam V. Mangal, 250. 

Rani v. Krishna Sahai, 390. 

Nanda Ki.shore v. lladan La', 351, 

Lai V. Dhirendra Nath,, 645, 

Nandan Prasad v. Abdul Aziz, 595. 
Nandi v. .Sarup Lai, 40. 

Kandram v. Bhupal Singh, 286. 
Nandrani v. Krishna Sahai, 181. 

Nanjia t. Sivabagyathachi, 141, 149. 
Nanjunda Swami v. Kanagaraju, 303. 
Nanuram v. Kadliabai, 406, 430. 
Narabadabai ilahadeo, 613, 625. 
Naraganti v. Nayanivaru, 641. 

'V. Venkatachalapati, 2.59, 637. 

Naragunty v. Vengama, 260. 

Narain v. Lokenath, 337. 

V. Hakhal, £6. 

V. Tirlok, 531. 

I>as V. Brij Lai, 490. 

— — V. Har Dayal, 328. 

V. Tirlok, 156 . 

Prasad v. Sarnam Singh, 324 
325, 327, 3G9. 

Sarup V. Daya Shanker, 297. 

Narainbati v. Ramdbari, 186. 

Naraini v. Chandi, 32. 

Naranbhai v. Eanohod, 270, 307. 
Narasimha v. Manjammal, 73, 

— V. Parthasarathi, 540. 

^ • Parthasarathy, 459, 4^9 

541. 

V. Veerabhadra. 21. 

V. Venkatadri, I79. 

~ Venlratalingum, 492 495 

Narasimham v. Venkatasnbamma’ 614. ^ 
Narasimhan v. Narasimhan, 35. 

Narayan v. Chintaman, 501. 

V. Gopalrao, 567. 

■ V. Laving, 531. 

■^. Laxman, 156. 

V. Nana, 535, 537. 

V. Nathaji, 312, 392. 

V. Pandurang, 425. 

■ Sagunabai, 368 . 

v. Sabvaji, 645, 646, 647 

V. Suppiah, 173 . 

V. Vasudeo, 635. 

V. Vucrappa, 359 . 

V. 5^011 katcharya, 383 
V. Wainan, IG4. 



TABLE OF CASES 


xli 


N — contd. 

Narayan v. Ayyangar v. Vengnanimal, 
543. 

■ Iyer V. Moorthi Kenden, 6. 

■ ^ingh V. Eajkumar, 208. 

NaraySna v. Krishna, 134. 

■ v. Nathaji, 275. 

V. Ramalinga, 391. 

V. Ranga, 508. 

■ V. Shankar, 403. 

• Rao V. Piirushothama Rao, 

408. 

Kaiayanacharaya v. Karso Krishna, 334. 
Karayanan v. Kannan, 44G. 

V. Muthiah, 291. 

V. Ravnnni, GOO. 

■ V. Veerappa, 348, 352. 

Karayanasami v^Kuppusami, 559. 

V. Manga mmal, 546. 

V. Raniasaraj, 450. 

V. Samida.s, 345, 386. 

Ayyar v. Rama Ayyar, 

195, 200. 

Narayanrao v. Rainabai, 015, 020, 029. 
Narbadabai v. Mahadeo, 604, 610, G2S. 
Karendra v. Dina Nath, 530. 

Karhar v. Balwant, 555. 

V. Bhau, 13. 

V. Karayan, 500. 

Karo V. Paragowda, 323. 

Gopal V. Para Canda, 310, 311, 313. 

Karotam v. Kanka, 157. 

Karottam v. Narsand.is, 449, 451. 
Karsappa v. Bharmapp,-, 24. 

V. Sakliaram, 162. 

Karsingh v. Lalji, 355, 377. 

Rao V. Mahalalcshmi Bai, 474, 

487. 

Naru V. Tai, 214, 218. 

Nasir v. Mota, 446. 

Nataraja v. Kailasami, 505. 

Katarajan Chettier v. Perumal Amtnal, 
27. 

Katasayan v. Ponnnsami, 384. 
Katasayy.an v. Ponnusaini, .3i>2, 371. 
Natchiaramnial v. Cioimlakrishiia, 023, 
Natlia V. Mehta Chhotalal, 38, 524, 067. 
Kathaji v. Hai'j, 055, 

Nathu V. Balwantrao, 595, 596. 

V. Dindayal, 282. 

— V. Knndan Lai, 370. 


N — contd. 

Katliubhai v. J3ai Hanagavri, 390. 

V. Javiier, 157. 

V. Mulchand, 046, 647. 

ISTatluiIal v. Babiiram. 132. 

Nathuram v. Shoma, 600. 

— V. Shoma Chhagan, 282, 578. 

Nathusingh v. Anaudrao, 410. 

Xaurangi v. Cnaran, 515. 

hfavalchand v, IVIanclicharid, 475. 
Kavanitha Krishna v. Collector of 
Tinnevelly, 4.3, 

Kavnitlal v. Piir.shotam, 533. 

Kawab Azimut v. Hurdwaree iMul, 650. 

Singh V. Daljib Singh, 052. 

Kawal Singh v. Bhagwan Singh, 35, 396. 
Nazir Begam v. Rao Raghunath Singh, 
286, 287. 

NecJkisto Deb v. Beerchunder, 260, C40. 
Nek Rani v. Emperor, 521. 

Nekram Singh v. Sriniwas, 657. 
Nellaikumaru v. Marakathammal, 128, 
132. 

Nclliappa V. Piinnaivanam, 511. 
i Nepaldas v. Probha-s Chandra, 95. 
Nhaiiee v. Hnreeram, 383. 

Niamat Rai v. Din Dayal, 188, 287, 290, 
291, 382. 

Nibaran Chandra Saha v. Lahtli Mohan 
Bnndaban Saha, 264. 

Nidhoomoni v. Saroda, 582. 

Nihal Chand Gopal Das v. Mohan Lai, 
349. 

^ Niladri Sahu v. Mahant Chaturbhuj Das, 
501, 502, 504. 

Nilmoney Singh v Baneshur, 607, 608* 
Niimony v. Hingoo LalJ. 63S. 

Ningarcddi v. Lakshmaiva, 302, 609. 
Nirad v. Shibdas, 508. 

Nirmal Kumar Bancrji v. Jyoti Prasad 
Banerji, 498, 507, 511. 

Nirmala v. Deva Narayan, 172, 17.5. 
Nirmaii t, Fateh, 407. 

Bahadur v. Fateh Bahadur, 

221. 

Nirvanaj’a v. NirvauLiya, 590, 500. 
Nitto Kissoroe v. JoLxendio Nauth, 619. 
Nobin Chundor v. Cliunder, 228. 

V. Romesh Chunder, 645. 

Nobodeep Chunder, In re, 322. 
Nobokishore v. Hari Nath, 195. 



xlii 


TABLE OF CASES. 


N- — cmicld. 

Kogendra v. Beuoy, 100, 134, 

Norendra Kath v. Kamalbasini Dasi, 
470. 

Nori Kamasastruly v. Teluguntla Bal- 
krishna Kao, 310. 

Nugender v. Kamince, 210. 

Nund Ki&hore '\j.. Kanee Kam, 166. 
Nunna v. Chidaraboyina, 266, 273, .310, 
319, 320, 322. 

Nunnu Meah v, KiishnaR-waini, 484, 485. 
Nusscrwanjcc v. Laxman, 644. 

O 


Obaia Kondania 

V. 

Kandasami, 

189, 

190, 208, 229. 
Official Assignee 

V. 

Palaniappa, 

265, 


V. 

267. 

Ramoliandra. 

320. 


— — of Bladraa v. Rama. 

chandna, 317, 319, 320. 

Liquidator, (J. V. Oil Mills J.td. 

V. Jamna Prasad, 317. 

Om Prakash v. Blotiram, 317. 

P 

Packiriaawmy v. Dorasawmy, 38, 398. 
Padajirav v. Ramrav, .723, 5.71, ,78,7. 
Padam Kumaii v. Suraj ICumari, 524. 

Lai V. Tek Singh, 485. 

Singh V. Ruoti Saram, 286. 

Padan l.al v. Tek Singh, 484. 

Padnia Kumari v. Court of M’ards, 5.74, 
070. 

Pahaladh v. Luchmunhutty, 424. 
Pahahvan Singh v. Jiivan Ba.s. 211, 212. 
Pahar Singh v. Shamscr Jang, 160. 
Paigi V. Sheonarain, 533. 

Pakkiam v. C’hclliah Pillai, 531. 

Palani v. Masakoan, 309. 

V. Rangayya, 380. 

Animal’, s case, 40‘.1. 

Ammal v, Muthuvenkatacliatia, 

409, 413, 417, 418, 419, 420, 421, 422. 
I’alaniammal v. Kotha iidarama Clona- 
dan, .792. 

Palaiiia[ijja v. Alayyan, 400, 423. 

— V. llciasikainony, 283. 284, 

500, 501, 502. 

Chelty V. Alagan Chetty 

or .Mayyan, 5. 


P — contd. 

Pulaniyandi v. Velayudara, 177. 
Pallayya v. Ramanadhanulu, 492. 
Panachand v. Manoharlal, 182. 
Panchappa v. Sanganbaaawa, ij52, 591. 
Pande Har Xaiain v. Surja KOnwari, 
494, 495. 

Pandharinath v. Govind, 178. 

V. Ramchandra, 593. 

Pandit Adya Shankar Towari v. Mst. 

Cliandravat, 486. 

Towari v. Mt. 

Chandravati, 132, 232. 

Mohanlal v. Pandit Raindaval, 

233, 246, 260. 

Pandu V. Goma, 303, 307. 
Pandurangv. Bhagwandas, 303. 

V. Bhaakar, 307, 310. 

■ 'r. Narmadaiiai Ram Krishna, 

574. 

Pangudaya v. Uthandiya, 277, 293. 
Panhar Singh v. Shamsher Jang, 667. 
Panton v. Administrator-General, 649. 
Panyam v. Ramalakshmamma, 547. 
Paramanand Bass Chota Bass & Sons 
V. Mannulal Kanji & Ors., 292. 
Parami v. Mahadevi, 612, 616. 
Parbati v. Chandarpal, 42. 

V. Jagadis, 15. 

V. Naunihal, 433. 

V. Naunihal Singh, 412, 417. 

V. Ram Prasad, 231. 

Kiinwar v. Chandarpal 

Kunwar 639. 

Parbatidevi v. Bansidhar, 400. 
Pareman Bass v. Bhattu, 384. 
Parmaiiand v. Nihal Chand, 513 

^iiiv Charandas, 451 
502, 574. 

Misir V. Gur Prasad, 386. 
Parmanandas v. Parbhudas, 60 
Parmappa v. Shiddappa, 141. 
Paimeshwar v. Govind, 275, 392 
V. Raj Kishore, 286. 

Parot Bapalal v, Mehta Harilal 9a 
48, 49, 86. ’ 

Parshadi Lai v. Brij mohanlal, 494^ 495 
Parsliottam v. Keshavlal, 132 163 

V. Vemchand, 6, 19^ gg 3 _ 

Parsotam v. Jaiiki Bai, 247 



TABLE OF CASES. 


xliii 


P — contd. 

Parsotam Bahechardas v. Keshav Dal- 
patram 164. 

Das V. Jagannath, 421. 

Gi:|; v. Dat Gir, 500. 

Partab Nj,rairi v. Triloki, 219. 

Parbap Chand v. Mb. Mokhani, 477. 

• Singh V. Dalip Singh, 399. 

Paithasarathy v. Thiruvengada, 491. 
Parvatava v Fakirnaik, 551. 

Parvathi v. Thiiumalai, 398. 

Parvati v. GaniJatrao, 009. 

V. Ram Barun, 491. 

Parvatibai v. Bhagwanb, 450. 

Parwatibai v. Chatru, 029. 

Paryag v. Kasi, 384. 

Pashupat Prabap Sing v. Lalab Bahadur 
Singh, 385. 

Pasupathinath Seal Pradyumnakumar 
Mallik, 600, 503. 

Patan Dei v, Sanboo Pi'asad, 202. 

Pabel Vandiavan v. Patel Manilal, 536» 
538, 639. 

Pate-shri v. Rudra Narain, 299. 

Patil Hari v. Hakaniohand, 304, 307- 
Patipal Singh v. Rampal Singh, 231. 
Pabnaloo Appalswaiuy v. E. Moosalaya, 
646. 

Pabra Chariar v. Srinivasa, 450. 

Patru Lai v. Pai'bhawati Ivuar, 408. 
Pabtaravy v. Audimula, 425. 

Pattu Achi v. Rajagopala Pillai, 681. 
Pauliem v. Pauliem, 259. 

Pawadeva v. Venkatcsh, 105. 

Payappa v. Appanna, 578, 579. 

Peary Lai v. Chandicharan, 385. 

Mohan v. Manohar, 500, 511. 

Peda Yeiikanna v. Sreetiivasa, 348, 
349. 

Peddayya v. Hainalingain, 315. 

Pem Singh v. Parbab Singh, 359, 365, 
367, 368, 372. 

Peria Ammani v. Krishna Sami, 658. 

V. Krishnasami, 538. 

Periakaruppan v. Aruuachelam, 253. 
Ponambal v. Sunderamal, Oil. 
Periasami v. Pcriasaini, 25, 315, 390, 642. 

V. iScetharania, il53, 354, 377. 

Penyanayakam v. Pobbukanni, 532. 
Perma Nand v. Shiv Charan Das, 450. 
Perrazu v. Subbarayadu, 274, 672, 
065. 


P — ccmtd. 

Pctainbor v. Hurrish Chunder, 418* 
Pefcherpermal v. IVIuniandi, 652. 
Pettachi Chettiar v. Sangili Veera 367, 
372. 

Phoolchand v, Rughoobuns, 188. 
Phool Coomari Dasi v. Debondra Nath 
^eal, 618. • 

Kunwor v. Rikld Ram, 168. 

Phukar Singh, v. Ranjit Singh, 159. 
Phulchand v. Lakku, 442. 

Phutfcibai V. Shri Deo Mandir, 511. 
Phundan Lai v. Arya Prithi, 496. 

Piare v. Ram, 304. 

Piari Lai v. Sunder Singh, 190; 

Pichappa Chettiar v. Chockalingam 
Pillai, 258. 

Pichuvayyan v, Subbayyan, 561. 

Pilu V. Babaji, 191, 193, 194, 196, 212, 
215, 581. 

Pindiprolu v. Pmdjprolu, 166. 

Pirthee Singh v. Raj Kooer, 616. 

V. Ra} kooer, 628. 

Pirthi Pal v. Jowahir Singh, 392. 
Pirthipal v. Rameshwar, 294, 300. 

Pirthi Singh v. Mamchand, 358. 

■ V. Man Chand, 385. 

Pitam Singh v. TJjagar Singh, 292. 

Poholo Mai V. Basant Ram, 322. 

Pokhan Duisadli v. Must. Mansa, 46. 
Pokhar Singh v. Dulari, 205. 

Polavarapa, Lingayya & Ora. v. 

Vupputusi Punnayya & Ors., 324. 
Polavrapu Lingayya & Ors. v. Vupputuri 
Punnayyo & Ors., 377. 

Ponnambala v. Sundarai>payyar, 328. 
Ponnusami v. Thatha, 303. 

Poorendra Nath v. Hemangini, 403. 
Poorendranath, v. Hemangini, 436. 
Fooraanandachi v. Gopalasami, 413, 
415. 

Powadewa v. Venkatesh, 106. 

Pr, N. Sm. Chockalingam Chettiar v. 

Official Assignee of Madias, 319. 
Prabhakar v. Sarubhai, 172, 175. 
Prafulla v. Biiabani, 215. 

V, Jogondra Nath, 496. 

V. Jogcndranalh, 490, 492. 

Prakkash Chandra Nag v. Subodh 
Chandra Nag, 509. 

Prainatha v. Bhuban, 230 



TABLE OF CASES. 


sQiv 

P — contd. 

Bramatha Xath v. Bhuban Mohan, 219. 

V. Pradyumna, 498, 507. 

V. Pradyumna Kumar, 

389, 507. 

Pran Kath v. Surrat Chandra, 94, 96. 
Pranjivan v. Bai Bhikhi, 80. 

PranjivandaH v. Devkuverbai, 162. 

V. Ichharam, 404. 

Pxankishcn v. Mothoora Mohuu, 263, 
430. 

Prasad Das Pal v. .Jagannath Pal, 512. 

Nath V. Ambica Prasad, 197. 

Pratab v. Shiani Lai, 280. 

Pratapinull Agarwalla v. Dhanabati Bibi, 
399, 407. 

Pratapsing v. Agarsingji, 460, 558, 568. 
Prayag Dass v. Tirumala, 511. 

Prem Devi v. Sliajiibhu Nath, 583. 

Kuer V. Banar.si Das, 590. 

Nath V. Hari Bam, 492. 

Pratap Singh v. Jagar Pratap 

Kunwari. 610. 

Premehand v. Hulaschaiid, 005. 

Premo v. Sheo Nath Pandc, 513. 
Premukhdas v. Bambhujawan, 280. 
Prettaohi Chettiar v. Sangili Veera 
Pandia, 367, 

Prince Suleiman v. Nawab Molmdi, 060. 
Prit Kocr v. Mahadeo Purshad, 201. 
Promothanath v. Nagcndrabala., 449. 
Promotho Y- Radhika, 493, 

Prosanno Kumar v. Sarat, 153. 

Prosonno V. Barbo.sa, 022, 023. 

Prosunno v. Tarrucknath, 451. 

Kumar v. Saroda, 500. 

— Kumari v. Gokb, 504. 

V. Golab Chaiid, 498^ 

500, 501. 

Debya v. Golab Chand. 

501. 

Protap Chandra v. Brojonath, 513. 

V. Jagadish Chandra, 

037. 

Pudiava v. Pavanasa, 102. 

Pudma Kiimari v. Court of Wards, 50, 
07, 556. 

Pulin Chandro v. B(jlai Maiidal, 193. 
Pulliah CliL-tti V. Vaiadarajuhi, 205. 
Puncha v. Bjnde.swari, 511. 

Punchanun v. Shibchunder, 425. 
Punchappa v. Sanganbasa wa, 559. 


P — concld. 

Punna Bibee v. B,,adha Kissen, 399. 

V. Radha Kissen Da.s, 239. 

Punnayyah v. Viranna, 593. 
Punyabratadas v. Monmolian Ray, 6. 
Puran Dai v. ,Tai Narain, 182. 

Puravij'a v. Poonaehi, 513. 

Puma Chandra v. Sarojmi, 438. 

— Sashi V. Kalidhan, 404, 407, 474. 

Punshotam v. Vasudeo, 573. 
Pursliotamda.s v. Purshotumdas, 518, 
529. 

Pur.shottam v. Rukhmabai, 570. 

V. Vasudev, 243. 

V. Ycniehand, 609. 

Purushothamdas Harjivandas v. Bai 
Rukmani, 610, 621. 

Purushottam v. Atraaram, 425, 428. 
Putlabai v. Mahadm 558, 559, 

Putlabhai v. Mahadu, 591. 

Puttoo Lai V. Ragubir Prasad, 301, 304. 
Puttu Lai V. Parbati Kunwar, 13, 562, 
583. 

Q 

Queen v. Marimuttu, 619. 

V. Nesbitt, 592. 

R 

Rabutty v. Sibcbunder, 485. 

Racliava V. Kalingapa, 78, 80, 84. 
Rachawa v. Shiva yogapa, 623. 

Radha v. Rajah Ram, 95. 

Kishun v. Jag Sahu, 286, 287. 

Mahadeb Jiv v. Rajendra Prasad 

Bose, 539. 

Mohan v. Hardai Bibi, 13. 

Nath Mukerji v. Shaktipada 

Mukerji, 507, 525. 

. Prasad v. Ranee Mani [35 Cal. 

896], 484, 486. 

Y. Ranee Mani [33 Cal 
947], 571. 

Y. Eanimoni Dasi [38 

Cal. 188], 455. 

Pro.sad. v. Ranee Mani, 461. 

Pnim V. Amar Chand, 286. 

'‘’byam v. .Joya Ram, 192. 

Radhabai i'. Anaiitrao, 035. 

V. Ganesh, 453. 

Y. Pandliarinath, 399. 



TABLE OF CASES. 


xlv 


R —contd. 

Badhakant Lai v. Nazma Begum, 252. 
Eadliakishun v. Jag Sahu, 287. 
Eadhanath Mukerji v. Shaktipatha 
Mukerji, 510. 

Radlii, In re The Petition of, 157. 
Eadlioba T. Aburao, 271. 

Eagavendra v. Jayaram, 527, 502. 
EagViavalu v. Adinarayana, 652. 
Eaghavendra v. Bhima, 4.57. 

Eagho V. Zaga, 283. 592, 593. 

Eaghoappa v. Balappa, 211. 

Eaghojirao v. Lakshmanrao, 635. 
Raghubanuud Doss v. Sadhu Churn, .572- 
Eaghubans v. Indarjit, 592, 593. 
Eaghubardyayal v. Eanidulare, 260. 
Eaghubir v. Moti Kunwar, 412. 

— Singh V. Jethu, 198, 225. 

Raghunada v. Brozo Ki.shoro, 557. 
Eaghunandan v. Patmeslnvar, 294. 

V. Tulshi Singh, 199. 

Sahu V. Badri Teli, 385. 

Singh V. Tulsi Singh, 194. 

Eaghunath v. Gobind, 251. 

V. Munnan Hisr, 49. 

Prasad v, Deputy C'ommis- 

faioner, 477. 

Shanlrar v. Laxmi Bai, 39, 

78, 85, 86. 

Raghunathji v. The Bank of Bombay, 
260, 270. 

Ragunatli v. Sri Karain, 277. 
Eagunandan Pershad v. Moti Ram, 351. 
Rahi V. Govind, 30, 397, 008. 

Rahimatbai v. Hiibai, 631. 

Rahimbhai, in the goods of, 630, 631. 

Rai Babu Mahabir Pershad v. Markunda 
Nath, 363, 307. 

Bajrang Bahadur Singh v. Rameshar 

Bux Singh, 192. 

Bishenchand v. Asmaida Koer, 12, 

393. 

V. Mussamat Asmaida 

Eoer, 446, 472. 

Eajeshnar v. Harkishan, 132, 189, 

190. 

Shadi Lai v. Lai Bahadur, 201. 

Eaikishon v. Debcndranath, 403, 471, 
474, 477. 

Eaj Baehaii Singh v. Bhaiiwar, 42, 43. 

Chunder v. Sheeshoo, 180. 

Coomar v. Bissessur, 563, 666. 


R — contd. 

Eaj Coomar Lall v. Bissessur Dyall, 1. 

■ Coomari v. Gopal, 390. 

Fateh Singh v. Baldeo Singh, 38. 

Kishore V. Madan Gopal, 246, 251, 

325, 371. 

Koomar v. Bissessur, 560. 

Kumar v. Mohan Lai, ^91. 

Lukhce Dabea v. Gokool Chunder, 

181, 192. 

Raja V. iSubbaraya, 572. 

Baksh Singh v. Ram Swarup, 369. 

Dei V. Umed .Singh, 227. 

Hurro Nath v. Eundhir Singh, 286. 

Jogendra v. Nityanand, 23, 37, 

397, 398, 639, 640. 

Madhusudan v. Kheshtabasi, 037. 

Makund Deb. v. Sri Jagannath, 

552, 559, 505. 

— — • Manindra v. Sarat Chandra, 515. 

of Eamnad v, Sundara, 455. 

Parichat v. Zalim .Singh. 608. 

Pirthee Singh v. Eajkooer, 615. 

Eaghunandan v. Kumar, 3.59. 

Rai Bhagwat v. Ram Eatan, 199. 

Ram V. Lucliman, 330. 

Ram v. Raja Baksh Singh, 369. 

Narayan v. Pertum Singh, 

244. 

Rao V. Raj.r of PittaiJur, 637, 

638. 

Seetlo Baksh Singh v. Babu 

Surrendra Bikram Singh, 226. 

Setrucherla v. Raja Setruchcrla, 

. 275, 412. 

Valugoti Sarvagna Kumara Krishna 

Xachendra Bahadur Vars v. Raja, 
Eajendra Rao & Ors , 63S. 

Vasi Reddi v. Lakshmi Naiasim- 

ham, 332. 

Vellanki v. Venkata, 542, 552. 

. — . — Vellanki v. Venkata Rama, 545, 

555. 

Venkayyamma V. Venkataranianay- 

yamma, 23, 42, 240. 

Vythinatha v. Yeggi.a, 42. 

Yarlagadda v. Raja Yarlagadda, 

629. 

Y'arlagadda v. Yarlagadda, 638. 

Rajagopalachariar v. Sami Reddi, 186. 
Rajah Muttu v. Periyanayagum, 605. 



xlvi 


TABLE OF CASES. 


R — cmUd, 


R- — contd. 


Bajah Nilmoncy Singh v. Rally Churn, 
226. 

• Ram T. Pertun Singh, 243. 

— Suraneni v. Venkaraa Row, 412. 

Venkata v. Bajah Suraneni, 73. 

Venkatappa v. Benga Rao, !547. 

Vurn^h v. Ravi Vurmah, 505. 

508. 

Rajamma v. Rarakrishnayya, 2,57, 258. 
Rajangam v. Rajangam, 414. 

Rajani Kant Pal v. Jaga Mohan Pal, 
252. 

Kanta v. The Secretary of State, 

198. 

Nath Das v. Nitai Chandra Dey, 

36, 397. 

Rajanikanta Pal v. SajanisundareeDasce, 
605, 619. 

Rajanikanth v. R.am Nath. .341. 

Rajaram v. CJancsh, 441, 446, 508. 

V. Joti Prasad, 541. 

Rajooomar Ijill v. Bissessur Dyal. 661. 
Rajc V. Jayavantrav. 5.54. 

Rajender v. Potto, 021. 

V. Sham Chund, 402, 477. 

V. Shamehund. 447. 

Rajendra v. Oopal, 663. 

V. Sham Chund, 494. 

— Lall V. Raj Coomari, 479, 480. 

V. Raj Kooraari, 490. 

Prasad v. Gopal Prasad (7 Pat. 

245), .542, 562. 

V. Gopal Prasad (10 

Pat. 187, 57 I. A. 296), 400, 539, 545:. 
BAjcndro Narain v. Saroda, 536. 

Rajeppa v. Oangappa, 65, 146. 
Rajcshwar v. Gopeshwar, 507. 

Rajindra v. Raghubans, 635. 

Rajkishen v. Ramjoy, 16. 

Rajkriato v. Kishoree, 196. 

Rajlakshmi v. Katyayani, 219. 

Rajlekhi Debia v. Gokul Chandra, 190. 
Rajlukhy v. Bhootmath, 611. 

Rajnandin v. Aswini Kumar, 1. 

Rajiani v. Gomati, 41. 

Kajrop V. Gopi, 199. 
i:,r)i np Rai v. Sheo Shank.ar E.ai, 409. 
R.ijn V. Animani, 12, 116, 141, 149, 
160. 

v. Nagammal, 576. 


Rakhmabai v. Keshav, 229. 

V. Radhabai, 548, 551, 555. 

V. Tukaram, 84. 

Ralla Ram v. Atma Earn. 304. 

Rallia Ram v. Balmokand. 371. 

Ram Adhar v. Ram Manohar, 213. 

Bahadur v. .Jagar Nath, 476. 

Baran v. Kamla Prasad, 32, 48. 

— ^ — Bharose v. Bhagwan Devi, 203. 

Bila.s V. Ram3'ad, 284, 324. 

Bujhawan Prasad v. Nathn Ram, 

280. 287. 


Isunsce v. »Soobh ICooiuvarec. 521, 

Chandar v. Muhammad, 362. 

Chandra v. .Tang Bahadur, 302. 

V. Bam Krishna, .500, 

Charan v. Ajudhia, 310. 

V V. Bh^.gwandas, 288. 

7 V. Gobinda, 505. 

'*Xi — I^EOirangi Lai, 515. 

Tlahim Baksh, 65. 

Co'omar v. Jogender Nath, 494. 

Das V, .Chandra, 14. 

V. Shri Ram Laxman Janki, 

499. 


Dayal v. Ajudhia Prasad, 374. 

V. Amin Uddin, 287. 

V. Durga Singh, 300. 

Debul V. Mitterjeet, 341, 342. 

Dei V. Abu Jafer, 201, 229. 289. 

Dhan v. Prayag, 493. 

Ghulam v. Kailash, 317. 

Gopal V. Narain. 119, 122, 143, 1.53 

Ghose V. Bullodeb Bose, 201, 

290. 


Hureo v. Trihee Ram, 430. 

Jash Agarwala v. Chand Mandal 

Cf\0 ’ 


V. Jamma, 3^. 

V. KhamiHag'Lal,.4n_ 

Kawal V. Ramkisbore, 182. 
Khelawan v. Ram Naresh, 286. 
Kishan v. Cheddi, 345. 

V. Chhedi Rai, 386. 

Ganga Ram, 293, 300. 

V. Tunda Mai, 262. 

Klshore v. Baijnath, 333. 

- Daa Mohanta v 


Gobinda Pati, 510. 


Ganga 



TABLE OE CASES. 


xlvii 


R — contd. 

Ram Krishna v. Batan Chand, 205, 267, 
270, 276, 291. 

V. Vinayak, 294. 

Kumar v. Amar Nath, 623. 

Dube Y. Bhagwanta, 616. 

Kumari, in the matter of, 5, 531. 

Kunwar v. Ram Dai, 622, 623. 

Lai V. Akhoy Charan, 666. 

V. jVIusammat Jwala, 617. 

Sett V. Kanai Lai Sett, 472, 

482. 

Narain v. Bar Naiinjan Knar, 10. 

V. Muhammad, 650. 

V. Nandi’ani, 190. 

V. Pearay, 485. 

Choudhury v. Pan Kuer, 

430. 

Narayan Y.^amoon, 510. 

Singh V. Ram Saran Lai, 

460. 

Naresh v. Mst. Ganga Dei, 2.58. 

Nath V. Chiranji Lai, 277, 291. 

Nirunjun v. Prayag Singh, 403. 

— — Parkash Das v. Anand Das, 499, 
504, 605, 511. 

Parshad v. Idu Mai, 53. 

Perga.sh v. Mussammat Dahan Bibi, 

6, 100, 427. 

Pershad v. Lakhpati, 400, 412, 413, 

417, 419, 422. 

Singh V. Lakhpati Koer, 

419. 

Piari V. Krishna Piari, 483. 

Prasad v. Ram Krishna Prasad, 

512. 

Raghubar y. Dip Narain, 282. 

Rakhan y. Bajalal, 354. 

Ratan y. Lachman Das, 350. 

Rattan v. Basant Rai, 357, 360, 

386. 

Rekha Singh v. Ganga Prasad, 370. 

Sahai y. Parbhu Dayal, 324, 325. 

Sahye Y. Lalla Laljee, 105, 107. 

Saran y. Tehckand, 36. 

Singh V. Mahabir ,Sewak 

Singh, 38. 

Sarup V. Bela, 478. 

V. Bharat Siiigb, 375. 

V. Ram Dei, 219. 

Shankar v. Lai Bahadur, 177. 

Sia Y. Bua, 60, 53. 


R — contd. 

Ram Singh y. Bhani, 102. 

Y. Chet Ram, 350. 

Y. i'akira, 410, 423. 

Soonder y. Ram Sahye, 105, 107. 

Soondur Y. Surbanee Dosee, 555. 

Sumran v. Govind Das, 180, 226. 

Sundar y. Collecto* of Gorakhpur, 

642. 

Sunder y. Lacchmi, 287. 

Sujftt V. Hitanandan, 180, 182. 

Rama y. Daji, 221. 

V. Ranga, 182. 

V. Vengidusami, 186. 

:7an,a v. Dhondi, 213, 214, 210. 

Nand y. Surgiani, -13. 

Raja Y. Papammal, 009. 

Rao V. Hanumantha, 369. 

— V. Baja of Pittapur (42 Mad. 

219), 224. 

V. Rajah of Pithapur, (45 

1, A. IDS), 10. 

Row V. Kuttiya, 32, 167. 

Raniabadra v. Gopalaswami, 413. 
Ramabai y. Dattatraya, 184. 

Y. Haraabai, 102. 

Y. Trimbak, 610, 621. 

Ramachandra v. Ramachandra (49 I. A. 

129, 45 Mad. 320), 487. 

Y. R.amchandra (42 Mad. 

283), 484. 

Balaji v. Shankar 

Apparao, 580. 

Ramacharya y. Anantacharya, 426. 

^ Ramaiyeiigar y. Secretary of State, 384. 
Ramakkal v. Ramasami, 40. 
Ramakottaya v. ViraraghaYayya, 203. 
Ramakrisbna v. Shamrao, 556. 

— — Y. Subbamma, 527. 

Filial V. ThiriiYarayana 

PiUai, 583. 

Ramalakshmi v. Sivanaiitha, 16, 389, 
639. 

Ramalinga v. Narayana, 2.70, 390, 409, 
417. 

V. Pavadai. 37. 

V. SiYachidambara, 251, 492. 

Ramalingani Y. Muthayyan, 282. 

Y. Vythilingain, 504, 505. 

Ramamaiii v. Kulanthai, 523. 

Ammal y. Kedanthai, 666, 

Ramamirtha y. Gopala, 442. 



xl\nii 


TABLE OF CASES. 


R- — contd. 

Baniamurti}ii v. Bliimasanliararao, 191, 
192. 

Ramanadan v. Ilangainraal, 622, 624. 
Ramanand Lai v. Baniodar Das, 189. 
201. 

Rainananda v. Rai Ivisliori, 95, 100. 
Ramanandan v., Rangaminal, G26. 
Ramaiiarasu v. Buohamma, 609. 
Ramanathan v. Mmugappa, 499, 506. 

V. Palaniappa, 594. 

CheLtiar v. S. R. M. Ct. 

M. Firm, 276. 294. 

Ramanna v. Venkata, 249, 308, 328. 
Ramanayya v. Angappayya, 345. 
Ramanuja v. Sadagopa, 654. 

Ramappa v. Sitliammal, 429. 

V. Yellappa, 199, 323, 324. 

Ramasamayyan v. Virasarai, 352, 360, 
362, 363, 365, 380. 

Ramasami Chetti v. ilangaikarsu, 218. 

V. Mangaikarasu. 183. 

V. Yarasamma, 43. 

V. Papayya, 484. 489. 

V. Selatlamiual, 211. 

V. Sundaralingasami, 639, 

640. 

V. L'laganatha, 348, 352, 37 1 . 

V. Vencatramaiyan, .576. 

V. Venkatarama, 306, 312, 

324. 

V. Venkatesam, 75. 

Ramasamy v. Subramania, 392. 
Ramaswarai v. Murugayyan, 28. 
Ramawati v. Manjhari, 614. 

Ramayya v. Bapanamma, 213, 215. 

Goundan v. Kolanda Goundan 

& Ors., 270. 

V. Venkataratnam, 294. 

Rarabhat v. Lakshman, 333. 

V. Timayya, 529. 

Ramohandar v. Kallu, 166. 

Ramchander v. Brojonath, 593. 
Ramcliandra v. Bliagwant, 358. 

V. Bhimrav, 196. 

, V. Damodiir, 271. 

V. Gopal, 560. 

V. KahUmatli, 500. 

V. Kond.ayja, 349. 

V. Krishnarao, 590. 

V. Mulji, 552. 

V. Nanaji, 560. 


R — contd. 

Ramchandra v. Sagunabai, 615. 

V. Sakharam, 605. 

V. Shripatrao, 294. 

V. Tukaram, 4 IS, 421. 

V. Venkatrao, 63.5. 

V. Vinayak, 29, 30, 50, 52, 

54,' 526, 528. 

-Doddappa v. Hanam. Yaik 

Doduaik, 36. 

Ramcharaii v. Mihin Lai, 282. 

Ramconnoy v. Johur Lall, 643. 
Ramcoomar v. Icliamoyi, 181, 186, 211. 

Koondoo V. llacqueen, 6.51. 

Ramda.s v. Baldcvdaaji, 74. 

Ramdhan v. Dalmir, 107. 

Ramebal v. Pan Mali, 49. 

Raniesh Chandra v. Mohammed, 15. 
Rameshar v. Rukmin, 4i47. 

Rameshra v. Kalpu Rai, 376. 

Rameshwar v. Mst. Ganapati Devi. 76, 
223. 

V. Lachmi, 393. 

V. ].achmi Prosad, 477. 

V, Provabath, 185. 

Rameswara v. Veeraoharlu, 518. 
Ramgouda v. Bhausaheb, 196, 202, 203, 
205, 206. 

Rami Reddy v. Gangi Reddi, 64, 72. 
Ramiah v. Venkatasubbamma, 457. 
Ramji V. Ghamau, 549, 550. 

Ramkaran Thakur v. Baldeo Thakur. 
284, 370. 

Ramkishore v. Bhoomunmoyee, 337. 

V. Jainarayan, 306, 309, 310 

333, 563. 

Rarakrishna v. Chimnaji, 560, 562. 

V. Narayan, 386. 

V. Ratan Chand, 291. 

V. Shamrao, 654. 

T. Tripurabai, igi, ipg 

631. 

V. Vinayak, 380. 

Ramkumari, In the matter of, 524. 
Ramlal v. Lakhmichand, 264, 265 236 
268, 269, 291. ’ ’ ’ 

Ramlinga v. Virupalishi, 402. 
Ramlochun v. Rughoobur, 426. 
Rammobaii v. Mulchand, 309. 

Ramnath V. ChiranjiLal, 262, 265 267 



TABLE OF CASES. 


x1ix 


R — contd. 

Bamnath v. Durga, 95, 100. 

V. Ramrao, 293. 

Ramnathaii Chettiar v. S. Rm. M. ct. M 
Firm, 2Qi. 

Rampaitab v. Foolibai, 265, 266. 
Rampershad v. Sheo Churn, 252, 253, 
254. 

Ramphal Rai v. Tula, 191. 

Ramphul Singh v. Deg Narain, 352, 303, 
367. 

Rampiayar v. Deva Rama, 529. 
Rampjyar v. Deva Rama, 533. 

Ramrao v. Yeshvantrao, 635. 

Ramsaran Singh v. Mahabir Sewak 
Singh, 520. 

Ramsebuk v. Ram Lai. 295, 298. 
Ramsumran Prasad’s case, 220, 221 

Prasafl v. Shyam Kumati, 

185, 186, 191, 208, 210, 220. 

Ramu V. Kashi, 464. 

Ramyad v. Rambbilbara, 22”. 

Ramzan v. Ram Dai 3 'a, 623, 026. 

Ran Bijar v. Jagat Pal, 102. 

Ranchordas v. Parvatibai, 222. 223. 
229, 491. 

Ranee Annapurni v. Swamiiiatha, 62.S. 
Raiigammal v. Echammal, 605, 618. 
Ranganadha v. Bhagiratlu, 442, 447, 
472, 476. 

Ranganaiki v. Ramanuja, 282, 521, 530. 
Ranganatha v. Karayanasami, 418. 
Ranganayakamraa v. Alwar, 565, 566, 
567. 

Rangappa v. Kamti, 212, 214. 
Rangappayya v. Shiva, 615. 

Rangasami v. Nachiappa, 166, 178, 193, 
194, 195, 202, 203, 204, 
212, 213, 216. 

V. Sundaiajulu, 418. 

Rangasayi v. Kagaratnamma, 410. 
Rangaswami Ayyangar v. Sivaptakasam 
Pillai & Ors., 293. 

Rangaswami’s case, 204. 

Rangav' 3 'a v. Thanikachalla, 102, 316, 
319. 

Hango V. Yaimiiiii.b.ii, 604. 

Rangiibai v. Bhaguthibai, 510. 

V. Copal, 588. 

V. Subaji, 620. 

Rani Anand Koer v. The Court of Wards, 
220, 227. 


R — contd. 

Rani Bhagwan Koer v. Bose, 6, 7. 

]VIewa Kuar v. Rani Hulas Kuir, 

209. 

Moni V. Radhaprasad, 472. 

Sartaj v, Deoraj, 440, 449. 

Kuari v- Deoraj Kuari, 637» 

638. * 

— - Srimnty Bibeali v. Koond Luta, 97, 
— — Tarokessuar v. Soslii, 4G7. 

— — Tarokessur Roy v. Soshi, 460, 464, 
474. 

Ranjit Lai v. Bijoy Krishna, 541. 

Singh V. Jagannath, 507. 

Ranmalsangji v. Kuiidan, 616. 
Ranmalsingji v. Vadilal, 594. 

Ranodip Singh v. Parmeshwar Persliail, 
330, 335. 

Ranoji v. Kandoji, 36, 397, 398. 

Rao Bahvanb Singh v. Rani Kishori, 243. 

Bhimsineh v. Gangaram, 642. 

Kurnn fSingh v. "SaTvab l»ialQOTned, 

227. 

Raoji V. Anant, 423. 

Rupa V. Kunjalal Hiralal, 208. 

Rash Mohini v. Umcsh Chunder, 448. 
Rashid v. JSherbanu, 632. 

Rashik Lai v. Radha Dulaiya, 22U, 232. 
Rasikial v. Singheswar, 383. 

Rasul V. Rain Sunin, 617. 

R<ataii Behari v. Margaretha, 530. 
Ratanchand v. Javecchand, 180, 6*20. 
Rabanlal v. Ramanujdas, 427. 
Rathinasabapathi v. Gopala, 609. 
f<.athTia V. Aiyanachariar, 372. 

Rathnam v. Sivasubraraania, 251. 
Rathubans v. Bhagvant, 615. 

Rati Rain v. Niadar, 292. 

Katiiani v. Govindarajulu, 284. 
Katnasubbu v. Ponnappa, 50. 
l^bbanlal v. Baijnath> 540. 

Ravaneahwar v. Chfindi Prasad (38 Cal 
721), 190. 

V. Chandi Prasad (43 Cab 

417), 185, 190. 

Ravji V. Lakhmibai, 575. 

V. JMahadcv, 653, 6o4, 

Rawab v. Beni Bah<adui’, 541. 

Kayakkal v. SubbaiHia, 251, 302. 

Readc v. KiLshna, 587, 592. 

Regcila V. Nimushakari, 211, 

Reiika v. Bliola Nath, 225. 



1 


TABLE OF CASES. 


"R—concld. 


S — contd. 


V. Ivik Pati, 505. 

Ilewan PerKad v. JIudhu Bccby, 20<l, 417. 
Kcwuti Pt'ihftd V. lladha Bcc-by, 413, 
410, 

liiuNal. All V. Jqbal ilai, 251. 
liikhdoo V. Sukhdf'ij, 231. 

Kiland, /;/ r^/400. 

Pviiidabai v. Anacharya, 70, 102, 103. 
Uihial Siiij^b v. Hal want Sin^b, 2 ID. 
IlivcLt-f'ainac v. .Tivibai, 175. 

Hm. T,. M. \j. 1/. Ala^ammal Aobi & Ors. 
V. Vi'. P. Jj. -M. PalanLa[)jja ('betiiar &, 
Ovs.* 2(j5. 

Raljc'l't & Co. v'. Burncliaiitl, 

Rollins V. Rational Trust Co., 2015. 

Rnglio V. Zaga, 2S4. 

Rotnannth v. Rajoiiinioni, Olti. 
RooiJoband v. RooluUaiul, 7H. 

RosUan Singh v. Balwant Singh, 30, !!U7, 
007, 608. 

Koshcii Livl V. Sainiir Natli, .702, 5Sl\. 
Kottala V. I’ulicat, 302, .303, 321. 

Rudr. Naiam v. Ruo Kuar, 484. 
Rii(lrap]j!i. V. Iravii, 7'.l. 

Ruka Rai v. (.laiida Uai, 021. 

Kukliali V. Chiiiiil.'i.l, OOO. 

Rukminibai v. ],axmiliai, 445. 
Runchordas v. Rarvutibai, 400. 
Rungaina v. Atihiiiua, .530, 00.5. 

Runjeet Singh v. Oujraj Sitigli, 410. 

Rup Nai'.aln v. Gopal Devi, 2011, 203, 
683. 

— Rinn V. Rnwati, 214. 

Singh V. Rhubuti, 402. 

Rnpa V. KriBhnaji, 512. 

. — — V. Sat'dar Mirza, 101. 

Rupt'hand v. .Jamhu IVrshad, 6, 10, 17. 
RuBBoobai v. Zoolckhabai, 43, 83. 
Rustoni , Singh v. Moti Singh, 180. 

Rnvo Bhudr v. Boopshuiikur, 502. 
Ruvee Bhndr v. Boopshunkar, 508. 

s 


Saba Bibi llara l.al, 051. 

Sabaiiatlii v. Suinasundaraiii, 328. 

— V. O'liardaYiiroy.n., 311. 
Sai'biiidia v. llcuiehandra, 300. 
Sacliitauada v. Baloram, 0.54. 

Sadab.ai't Rrasad v. Foolbash, 303. 

— V, Foolbash Koor, 324. 


Sftdashiv v. Dhakubai, 186. 

Sadashiv Wainan v. Rcshma, .5.51 
Sadhu Saran v. Brahmdeo, 270, 203 
Sadik Husain Khan v. Ha.shiin All Khan, 
442. 

Sadu V. Baiza, 30, 307, 39S. 

V. Ram, 424. 

Sagiina v. Sadashiv, 47, 02, SO. 

Sahdeo Narain Deo v. Ku-sum Kiiiuan, 
17, 661. 

Sahab Rai v. Shalitj Ahmad, 128. 

Saht'b Rai v. Shafiq Ahmad, 100. 
Sahehgouda v. Basangouda, 041. 

V. Shiddangouda, 572, 640. 

Sahib Singh v. Girdhari Lai, 371. 

Sahu Ram's case, 373, 374. 

Ram V. Bhup Singh, 280, 281, 324 

373 . 1. 


.rtuuivu V. 






Pratap Narain Singh, 282. 

Saithri, In the matter of, 690, 692. 
Sakharam v. Balkrishna, 67. 

V. Devji, 299. 

V. Govind, 344. 

V. Sitabai, 13, 79, 87. 

V. Thama, 216, 581 

Satii V. Sliamrao, 398. 

Shot v. Sitaram, 367. 

Sakina Bibeo v. Mahomed Ishak, 458 
Sakrabhai v. Maganlal, 212, 265. 

Salamat Khan v. Bhagwat, 280. 
Salemma v. Lutchmaua, 112 113 lla 
115, 110, 126, 131, 137, 138. 140 ’ 

Saltay M.ahoiued v. Lady Janbai. 032 
Sanui Ilao v. Vannajee, 349. 
fSiiinalbhai v. Someshwar^ 253, 264 205 
S’amat v. Amra, 47. * 

f'ambpjsiva v. Venkataswara 125 13-'> 

Stato“for 

Chandra, 

Sami V. I’oonnain mal, 353. 

^ Ayyangar v. Ponnammal, 377 37 h 
S aminadia v. Angamraal, 49. 

— Vageesan, 600. 
Saiumantlia v. Sclappa, 493 
Samudrala v. Samudrala, 75. 

San Kuiiiiu- v. Deo Saran 42 
SanUa y. The Bank of Burmah, -m 
SankaalinLiain PilUu v v„i u . ’ 

428. 'Pluuhairu 



TABLE OE CASES. 


— contd. 

Sankar Nath v. Bijoy Gopal, 197. 
ki^ankaralinga v. Official Receiver, 346. 

■ — — - — ^ — V. Rajeswara, 513. 

8ankaraling*ain v. Subban, 531. 
Sankaramuithy v. Subbamma, 618 
Sanku v. Puttamma, 104. 

Sanmukh v. Jagarnath, 201, 382. 

Sant Ram v. The Crown, 521. 

Santala v. Badaswari, Cl 7. 

Santapayya v. Rangappa^-ya, .567. 

Santu Ram v. Mst. Dodan Bai, 183. 
Sanwal Das v. Kure Mai, 254, 262. 
Sanyaai Oharan v. Asutosh, 266, 322. 

V. Ivrislinadhan, 322. 

Manclal v. Krishnadhan 

Banei'ji, 266, 269. 

Sanyasirao v. iSury£»iarayanamiiia, 023. 
Saodamini Dasi v. Administrator- 
General of Bengal, 171. 

Sarab Sukh v. Ram Pra'-ad, 496. 
Sarabjit v. Tndarjit, 16. 

Sarada Prosad v. Rama Pali, 5-10 

V. Mahananda, 342. 

V. Uniakantci, 412. 

Prasanna v. l'mak<anta. 14. 

Saradambal v. S. Subbarai Ayyar, 27. 
iSaraju Bala v. J^’otir Moyoo, 474, 476, 
477, 488' 

V. Jyobinnoyec, 477. 

Sarala Sundari v. Hazari Dasi. .597. 
Sarasuti v. Mannu, 397. 

Saraswati v. Mannu, 37. 

Sarat Chandra v. Bhupendva Nath, 458 

V. Charusila, 169, 176, 

179. 

V. Forman, 592. 

Y, Pratap Chandra. 491. 

— Chundor v. Gopal Chunder, 584, 

Sardamal v. Aranvayal, 310. 

Sardar Bahadur Sardar Indra Singh 
V. The Commissioner of Income- 
Tax, Bihar & Oris.sa, 2C1. 

Singli V. Kunj Bcliari Cal, 180, 

ISl, 182, 183. 

Sarclari Lai v. Bliaval National Bank, 
3 58 . 

Sarju Par.shad v Bir Bhaddar, 651. 

Prasad v. Mangal, 221, 333, 334. 

V. Nand Gopal, 418. 

Sarjubai, In re, 498. 


li 

— contd. 

Sarnam v. Raja Bisheshwar, 176. 

Saroda v. Kristo, 480. 

Sarojini Devi v. Subrahmanyam, 28, 
614. 

Sartaj v. Deoraj, 441, 451. 

Kuari v. Deoraj Kugri, 393, 605. 

Sartaji v. Ramjas, 214. 

Sainibhai Balakdas v. Narayandas Bairag, 
137. 

Sasanka Bhusan v. Gopi Ballav, 450, 
461. 

Sasbi Ivurnan Devi v. Dhirendi-a Kishnn* 
Roy, 506. 

Sasiman v. Shib Narayan, 488. 

Sat Narain's case, 318, 320. 

— — - Narain v. Behari Lai, 352, 361, 305, 

V. Sri Kislien, 317, 319. 

— V. Kishen Shri Das, 322, 369. 

Satgur Prasad v. Kishove Lai. 232. 
Sathajjpayyar v. Pei iasami, 513. 

Sathi V. Ramandi, G02. 

Sathianama v, Sarav.inabagi, 494. 
Sathuvayyan v. ISlutbusami, 300. 
Sathyabhama v. Kesavacbaiya, GIG. 
Sattiraja v. Venkataswami, 536, 537, 
507. 

Satt-iraju v. Venkataswami, 551. 

Safcya Charan v. Satpir, 383. 
Satyanarayaiia v. !Mallayya, 594. 
Saudagar Singh v. Pardip Singh, 221, 
225. 

Savitri Bai v. Bhabat, 102. 
i<*avitribai v. T^ximibai, 603, 605, 618, 
620. 

Sayamalal v. Saudamini, 552. 

Sayed Kasam v. Jorawar Singli, 422. 
Secretary of State for India v. Ahalyabai 
Naraycn, 610, 613. 

Scethabai v. Narasimha, 580. 

Seclam Nagamma v. Reddam Lingareddi, 
57. 

Seethabai v. Narasimha, 239. 

Sccthai V. Nachiar, 43. 
Sectliarainanima v. Suryanarayana, 567. 
Scetharamanna v. Ajipiah, 600, 601. 
Selnvebo v. Subbiah alias Shaniuughaiu 
Chettiar, 352. 

Sellani v. Chinnammal, 39, 100. 
Sellamuthu, In re, 320, 

Servai, In re, 317. 



lu 


table of cases 


. S' — contd. 

fiellappR V. Miiwi, 30(i. 

fiupEtrx, 2b2, 284, C40. 

K«ngo*itt V. Miitlm, 419. 

Sefiha. Ayyar v. Krithiia Ayyar, 384- 
Bekhan v. \'ec*ra, 293, 298. 

Be«hammu v. Narasimharao, 544.^ 

v.*^l'adniaiia)jUa Rao, '>3(>. 

V. Kubbarayadu, 029. 

Scehayya v. Narasarama, 485. 

Seapuri v. DwaiUa I'labad, (ifiO. 

Beth Mulchaiid v. Hai Mancha, 4.54. 
Bethnrania v. I’oiinatninal, .50. 
S'cthuvainanwaULiar V. Mc-ruawamiar (45 

J. A. 1,41 Mad. 
290), 409, .502. 
. V. JUruswainiav (34 


S — contd. 

Si^niBing V. Bantaba-i, Jj 59. 5(V>. ;>U1. 
Shamu v. Babii Aba. 

Shangara v. Kmbiian, 

Shankar v. iJfchu, 

V. Haidf'O, 992. 

\'. 099. 

-- V. Zaghoba, 22b. 

Bail V. Kaslunath. 47. 

BaLh V. Hardeo Bak^h, 252. 

Shankorsingh v, Gulaixhand, 4l>9. 

Shanti Kumar Pal v. MiikaiKllal Mandal, 
20K 219. 

Shuntilal v. Miin.shilal, 292. 

Mewaram v Mun-hUal Kf-wal- 

ram, 411. 

Shankaran v. Kepavan, 50b. 


Mad, 470), 500. 

Bhadi V. Anup .Sbi(/li, 272. 

Blmgun Oliund v. Vtata Ram, 409. 

Shah Khannm v. Kalandhai' Khan, lo.l 


Btiahebyada v. llillf, 315. 

BUaiUb .laii v. liiUoo, 284, 370. 
SlmUuidahai V. 'Clio (.'nurO ot Wanb. I'.IH. 
Blmlig lUm V. Chaiaiijit bal, 487. 
Sham V. < 'oiirt, 75. 

HihaiiUl V. Ham Kah, 1 in, lOo 

J)hb V, I’mci Dill, .59'.1. 

Ijfi V Hilhliadia fruMid, 10. 05. 


183. 

Koci' V, Dali Koci', 132, 232. 

Kuav V. Moliaiuinda, 589. 

, Pal V. Amarcdrn, 109. 

. - V. Banna, (124. 

— V. Uhindo, 002. 

RaUii V, .Jaiccha, 212. 

Tlao V. KviBhiiaiao. 44. 

Shivciidar v. Janki Koer, i:i7. 

Slnph V. Kiahun Bahai, 47. 

BundtT V. Achhan Kuiiwar, 

184, 189. 192, 210, 279, 2H0, 291. 
Bhama Charn v. Klu-ttromoni Rasi, 448. 

,„Bao V. Raghunaadan, 138. 

Sharnavahon V. Dwaikadas. 543. 

Bliaiiibii ■Pi'.isad V MahadiMi Viaiad. 
Sliaiidil.iimdl' Bhiv|iiiii v l'iiBhh,i.vaii.i.t li. 


050. 

SliiinigiLi .1 V Is, I islin-i'i, 

Sli.tiidal \'. .li.N.di.ii, !7. 

Bhamnavain v. Rnghoobuidyal, P59. 
Sliaiiimo V. Ranhunandan, 40. 
Bhammthi Kishaii. 293. 


Bhantaram v. \Vaini\n, 389. 

Bharat Chandra v. Shanta Bai, .57»i. 

Bharifa y. Munekhan, 002. 
Bhashankbhooshaii Chaudii v. Brajcin- 
dranarayen Mandal, 553. 

Shashi Bhusan v. Hari Narain, 127. 

— - - Bhushan v. Rajendra Nath. 153. 
Shayama C'haran v. Sorup Chandra. 491 
shedeo Narain v. Kiisiim Kumari. .' 
•Sheikh Abdul v. Shiv Lai, 294. 

Ohaait Mia v. Thakur PuiKlia- 

nan Singh, 211, 220. 

Ibrahim v. Rama Ayer, 294 

■ Karoo v. Rameshwar Bao, 34.5. 

V. Bameahwar Bao, 308, 

309. 

Shelly’s case, 408. 

1 Sheo Das Pandey v. Mst, Ram Kali. 225. 

I Dayal y. Jadoonath, 423. 

- — Gopal V. Pirm Ganesh Das Kam- 
gopal, 255, 369. 

1 — Govind v. Ram Adhin, 600. 

_ — Lochun Singh V. Saheb Sineh, 173, 
174. 

Mahirp Bikram Singh v. Mahant 

Thakut Das, 345. 

Narain v, Janki Prasad, 401. 

V. Khnrgo, 219. 

V. Mata Prasad, 653. 

I — V. Mokshoda Das, 381. 

- IVrshad.v. Saheb Lai, 301. 

V. Rajkumar, 299. 

— Peilab Y, The Allahabad Bank, 120. 
^ - Prasad v. Aya Ram, 505, 509, 510. 

. — Ram V. Duvga, 3.50, 370, 



TABLE OF CASES. 


liii 


S — contd. 

Sheo Kam v. Sheo Ratan, 183. 

• Shankar v. Rebi Sahai, 119, 129, 

160. 

— • — V. Jadclo Kunwar, 294, 299. 

— V. Ram Shewak, 500. 

Singh V. Rakho, G, IGO. 

Rai V. iRiRsunint Raklio, 

656. 057, 658, 659. 

Sheobarat v. Bhagwati, 49. 

Sheodan v. Balkaran, 406. 

Sheokuarbai v. Jeoraj, G, 659. 

Slieolochan. V. Saheb Singh, 172. 
Sheolotan v. Bhirgun, 5Go. 

Shcoparsan v. Rainnandan, 224. 
Sheopersad v. Leela Singh, 272, 273. 
Sheopiasad Sahu v. Reo Charan Sahn. 
302. 

Sheoratan v. Ram?*argash, 505, 510. 

Sher Mohammad Khan v. Ramratam, 
262. 

Singh V, Basdeo Singh, 44 

Shesgiri v. Girowap, 37. 

Shib Charan Ras, In the goods of, 457. 

Rayee v. Roorga Pershad, 620. 

Deo V. Ram Prasad, 221, 560. 

Sahai v. Saraswati, 53. 

Shibaprasad Singh v. Prayag Kumari 
Rebee, 636, 041, 

Shibbosoondcry v. Bus&oniutty, 438. 
Shibessouree v. Mothooranath, 499, 510. 

Revia v. Mothooranath 

Acharjo, 198, 501. 

Shiddappa v. Pandurang, 199. 
Shidramappa v. Nilambai, 45. 

Sliimbu Nath v. Gayan Chaiid, 100, 657. 
Shinappaya v, Rajamma, 611. 

Shrinivas Rao v. Annadanan Sesha- 
charulu, 186. 

Shiv Charan Ras v. Hari Ram, 205. 

Golam V. Baran, 262. 

Shiva Nath v. Tulsi Ram, 380. 
Shivagunga's case, 222, 223, 642. 
Shivajirao v. Vasantrao, 315, 396. 
Shivappa Rndrappa v. Rndrava Chanba- 
sappa, 408, 487, 541 
Shiv]i V Ratn, 587, 631, 

Ha^am v. Datu Mavji, 6,30. 

Sliivial V. Bai Sankli, 616. 

Shivinurteppa v. Virappa, 309. 

Shivram v. Sakharam, 368. 

Sliome Shankar v. Rajesar, 38. 


S — contd. 

Shookmoy (lhandra v. Manohari Bassi, 
471, 479. 

Sliofahinath v. Krishnasnnderi, 505, 566. 
Shrawaii v. Jangulya, 350. 

Shree Shree Gopal Shreedhar Mahadeb 
V. Sasheebliushan Sarkar, 501. 
Sbrecniancbundcr v. Gopaulchundei', 
650. 

Shri Ganesh v. Kesha vrao, 494. 

Sitaram v. Harihar, 552. 

V. Shri Harihar, 567. 

Shridhar v. Hiralal, 523. 

■ Bhagwanji Teli v. Mst. Sitabai, 

613, 615, 619. 

Shripad v. Vithal, 562. 

Shyam Beliari Singh v. Rameshwar 
Prasad Sahu, 23, 245, 325. 

Lai V. Badri Prasad, 287. 

Sunder v. Jagarnath, 310. 

Shyamcliaran v. Sricharan, 568. 

I Siddappa v. Nigangavda, 578. 

. Siddessury v. Janardan, 015, 618, 619. 

' Sidheswar Nath v. Deokali Bin, 317. 

I Sidlingappa v. Sidava, 611, 621, 622. 
iSikher Chand v. Bulputty, 599. 
Simbhunath v. Golab Singh, 367, 368, 
372. 

Sime Darby & Co. v. Official Assignee, 
264. 

Sinaya v. Mnnisami, 693. 

Singam v. Braupadi, 188. 

Sir Mahomed Yusuf v. Hargorandas, 
* 4.57. 

Siri Thakur v. Atkins, 493. 

Sita Ram v. Rnlani, 175. 

V. Zalim Singh, 371. 

Saran v. Jagat, 227. 

iSitabai’s case, 548. 

Sitabai v. Bapn, 542, 543. 

V. Govindrao, 548. 

V. Parvatibai, 562. 

- V. Ramchandrarao, 611. 

Sital V. Madho, 243, 

Prasad v. Sri Ram, 127, 239. 

' Proshad v. Kaifnl Sheikli, 457. 
Siba’al V. Ajablal Mander, 284. 
Sibalprasad v. Ram Prasad, 254, 271. 
Sitamma v. Sitapathirao, 650. 

Sit-anath v. Hainiabutty, 610. 

Sitanna v. Viraiina, 214. 



liv 


TABLE OF CASES. 


S — contd. 

Sitaram v. Aheeree, 532. 

V. Ganpat, 36, 608. 

V. Harihar, 384, 535. 

V. Khandu, 197. 

Sitaramayya v. Venkataramanna. 383. 
Sivaramamurthi v. Venkayya, 312. 
SivasurayanaSayana v. Audinarayana, 
546. 

Siveshwar Prasad v. Lala Har Narain, 27. 
Skarabhai v. Maganlal, 265. 

Skinner v. Orde, 591. 

Sm. Shakuntala Devi v. Kaushalya Devi 
20, 46. 167. 

Smith V. Massey, 491. 

Sobadra v. ,Shri Thakur Beli.ariji 
Maharaji, 66. 

Sobadri v. Siiri Thakur Beliariji Maharaji 
61, 64. 

Sobhaddi v. Oobind, 74. 

Pobhanadramina v. Narasinihaswaini 

Oil. 

Sobhanandri v. Siiramulu, 590. 

Sohan Lai v. Atal Nath, .595. 

Singh V. Kabla Singh, 523. 

iSoiru Padmanabh v. Narayanrao, 276. 
Sokkanadha v. Sokkanadha, 208. 
Solukhna v. Ramdolal, 542. 

Somasekliara v. lilahadeva, 603, 665. 

V. iStiblmdraniaji, 567. 

Somasund.ara v, Ganga, 2.58, 2.57, 243. 
Somasnndniain v. Dnnanialai, 013, 623, 
624. 

V. V.aitliilitiga, 74, 107, 

664. 

Sonieshwar v. Somcshwar, 198. 
.Soineshwari Prasad v. Maba.sliwari 
Prasad, 030, 038. 

Sonatun v. Jugntsoondrec, 410, 449, 480, 
484, 494. 

,Soni Ram v. Kanhaij'a Lai, 212. 

Sonu V. Dhoiidu, 594. 

Soobah Pirthee Lai v. Soobah Doorga 
Lai, 597. 

Soobramiah v. Natar.ajan, 47. 

.Sonnder Narain v. Bennud R.ain, ,592 
Soonivam Ramniranjaiida.s v. Alagii 
Nacliiy.ir Koil, 492. 

,Si)ora Kocr v. Nalli Biiksh, 622. 
iSdoratha v. I\anal;a, 562. 
iSoorendro v. Nundan, 279, 281, 280. 
Soorendronath v. Heeramonee, 14. 


S’ — contd. 

Soorjeemoney Dosseo v. Denobundno 
Mullick [(1856) 
6 M.I.A. 526], 
459, 460. 

V. tlenobundoo 

Mullick [ (1802) 9 M.I.A. 123], 448 
467, 474, 475, 476. 

Sorolah v. Bhoobun, 127, 435, 430, 022. 
Soshi V. Ganesh. 271. 

Sotam Ram v. Pardum.an Ram. 276. 

•Soudaminey Dosee v. .Joge.di Clmnder 
474. ’ 


Soundara Rajan v. Nal.irajan (4 8 Mad 
906, 52 I.A. 310), 473. 

.Soundararajan v. Aninachalam, 30 
397, 409. 

Sourendra iMohan v. Han Pjasad. 347. 
Souri v. Pachia, 310 .^ 

Sowdammee Donsi v. Adrninistratnr- 
General of Bengal, 132. 
.Sowntharairandian -Ayyarigar v. Peria. 
veru Thc-van, 57]. 

Sr. Radhakrishna Asthapit Tli.ihurdwai-a 
V. Mst. Maharaj Knnwar, 499 
Sroo Krishna Jana v. Seeta Nall. Bera. 

hnJ. 




■ ■ Yomimula v. Yanuimda, 263. 

-Rajah Vasi Reddi Balacluindra- 
•sekhara Varaprasad Bahadur IManne 
Suhan Garu v. Lakshmi Narasnnham 



Sreemutty Puddo v. Dwarka .>^ath 

Biswas, 175 . 

r ^ Soorjeemoney Dossev v 
Benobundoo, 170 . 17 i %39 342' 
Sreenarain v. Kishen, 690 . 

- V- Sreemutty, 665. 

Sreeuath v. Surbo I53 

- GajapatM v. Gaia^paSh^®^^’ 

in Nilmani v t>nA\ 

40» 



TABLE OF CASES. 


Iv 


S — contd, 

Sri Gaja,jjaOi v. Pusapati, 40. 

— Kant Lai v. Sideshwan Prasad, 274. 

— Mahant Govind v. Sitarani, 25(i. 

— Mohan v» Brij Bcliary, 181, 185. 

— Naraifi v. Lala Raghubans, 371. 

— Nath V. Jagannath, 288. 

— Raghunada v. Brozo Kishoro, 547. 

— Raghunadha v. Sri Brozo Kishore, 

233, 273. 

— Raja Makund Deb. v. Sri Jagannath, 

561. 

— Venkata Surya v. The Court 

of Wards, 451, 573, 637. 

— Viravara v. Sri Raja Viravara, 

412. 

— Rajah Ram Row v. Rajah of Pitta- 

pur, 637. 

— Venkata Sri Rajah Raii- 

gayya, 567. 

— Yenumula v. Genumula, 641. 

. — Rajalakshmi Devi v. Sri Raja Surya, 

641. 

- Ram V. Jagdamba, 133. 

— - Rama Rao V. Raja of Pittapur, 638. 

— Ramaii v. Sri Oopal, 506. 

— Ramulu v. Raniayyu , 502. 

— Ranga v. Srinivasa, 275, 410. 

— Sri Sridhar Jew v. Maniiidra Kumar 

Mitra, 446. 

— Thakurji v. Nuiida, 251. 

— V. Sukhdeo Singh, 403. 

Srikant Lai v. Sidheshwari Prasad, 277. 
Srimath Daivasikamaiii v. Noor Maho- 
med, 503. 

V. Periyanan 

Chetti, 501, 514. 

Srimathi Sabitri v. Mrs. F. A. Savi, 230. 

Thakurain v. Mrs. Savi, 

508, 620. 

Widyavanti v. Jai Dayal, 384. 

Srimati Hemangini v. Kedarnath, 436. 

Krishna v. Bhaiya Rajendra, 

76, 140, 177. 

— Ooma V. Gokoolaiiuiid, 563. 

Parbati v. Jagadis, 14. 

V. Jagadis Chuniler, 630. 

Pramiia v. Clrandra .Shekhar. 

05. 

Uma Deyi v. Gokoolanund, 140. 

Srimohan v. Brijbehary, 180, 185. 
V. Maegregor, 402. 


I S — contd. 

Srimutty Manokrani Debi v. Haripada, 
166. 

Srinivasa v. Ammani, 614. 

V. Dandayudapani, 42. 

V. Eva'.appa, 511. 

V. Kuppuswami, 324, 326. 

V. Raiigasami, 54*7. 

V. Thiruvengadathaiy a n g a r , 

530 . 

Chariar v. Evalappa Mudaliar, 

499. 

Rao & Or.s. v. Annadhanaui 

Se.shacharlu & Ors., 20. 

.Srinivasaii v. .Sriiii vasaii, 529. 

.Sripat .Singh v. Tagore, 361, 362, 363, 
307. 

Srirani v. Hariciiaraii, 402. 

.Sriramulu v. Raniayya. 561. 
iStalkartt v. Goiial, 342. 

Suba Singh v. .Sarafraz, 28, 47. 

Subba V. Ganasa, 393. 

V. Rama, 425. 

V. Krishnamachari, 306, 313. 

V. Venkatarami, 303. 

Goundan v. Krishnamachari, 280. 

Narayana v. Ramaswami, 654. 

Rcddi V. Chengalamma, 219. 

— V. Dorai-sami, 573. 

V. Venkataramayya, 203. 

Subbaiya v. Mahammad, 515. 
iSubbalakshmi v. Narayanna lyyar, 214. 
Subbamma v. Subramanyam, 215. 
Subbammol V. Avudaiyammal, 40, 220, 
• 221 . 

Subbanna v. Balasubba Reddi, 315. 

V. Subbanna, 623. 

Subbarami v. Ramamma, 250, 449, 450. 

Reddi V. Chcnchuraghava 

Reddi, 407, 588. 

Subbaraya v. Kylasa, 49. 

V. Manika, 422. 

V. Ramasami, 101, 156, 531. 

V. Sadashiva, 411. 

Subbarayalu v. Kamalavallitha Yai am- 
nia, 628. 

Subbaiaj’ana v. Subbakka, 606. 
Subbarayar v. Subhammal, 566, 582. 
Subbarazu v. Venkataralnam, 426. 
Subbaroya v. Aiyaswami, 177. 

Subbaya v. Ananta, 391, 530. 

V. Surayya, 243, 461. 



Ivi 


TABLE OF CASES. 


S — contd. 

Subbayya Tevar v. Murudappa Pandian, 
638. 

Subramania V. Aiumuga, 564, 586. 

V. Gopala, 386. 

V. Kathnavelu, 36, 38, 73. 

V. Sabapathy, 349, 352. 

— . Valu, 608. 

— — C'hettiar v. Velayudam 

Chettiar, 676. 

Subramaniara v. Muthiah Chettiar, 571. 
Subramaniaii v. Arunachelam, 113, 115, 
116, 120, 128, 132, 140, 149, 160. 177, 
400. 

Subramanya v. Padmanabha, 310. 

V. Sadasiva, 371. 

. . .. V. Siva Subramanya, 28, 

639, 640. 

Subrao v. IVIahadevi, 340. 

V. Kadlia, 1, 560, 661, 662, 664, 

665. 

Subraya v. Nagappa, 372. 

Suchit Chaudhury v. Harnandan Singh, 
594. 

Sudanand v. Soorjooiiionee, 333. 
.Sudarsanam v. Narasimhulu, 235, 238, 
254, 315, 417, 418, 421. 

Sugalichand v. Mangibai, 6. 14, 16. 

- . Bhikanchand v. JLangibhai 

Gulabchand, .538, 6.58. 

Sukalal v. Bapn, 044. 

Sukh Itei v. Kedar Nath, 448. 

Lai V. Mtirari Lai, 286, 

Sukhadakanta Bhattacharjya v. 

Jogiiiaekanta Bhattacharjya, 341 
.Sukbbir V. Mangeisar, 563. 

^ — Singh V. Mangeisar Bao, 14. 

Sukhdeo v, Bas Deo, 274. 

V. Madhusudan, 348. 

-- . V. Ram Chander, 589. 

Sukumari v. Ananta, 664. 

Sulbi V. Bamkrishnabhatta, 219, 

Sumer Singh v. Liladhar, 385. 

Surarun v. Chundcr Mun, 399. 
Sumbiiddin (luharn Hussein v, .\biliil 
liusscin Kalimuddin, 207. 

Sundiii Lai v. Balden .Singh, 6.5.8, 

V. C'hlutai -Mai. 234 

.Snndair, .Sivndii v. Adinaraye.n.i. .ilJ. 
Suiidaiam v. Iviimasainia, 139. 
.Sundaramma v. Venkata.subha, 57L 
Sundarainmal v. Rangasami, 63, 67. 


— contd. 

■Sundararaja v. Pattana Thu.sami, ,594. 
Sundararamaj'ya v. Sittamma, 2.51. 
Sundarasiva v. Viyyamma, 41, 21.5, 
.Sundari v. Pitainb.ari. 9.5, 100. 

Animal v. .^ubrahmaii’a Avvar, 

530. 

Sundarji v. Dahibai, 619, 6.5.5. 
SundarUngasami v. R.am.asami, 639. 
Sunder Lai v. R.aghun.andan. 346,’ 385. 
Mull V. Satya Kinker Snhana, 

286. 287. 

Singh V. Ram Nath, 623. 

Sunderesan v. I'i.swan.ad.a, 503. 
iSundrabai v. Haninant Gurnath, .562. 

— V. .layavant, 647. 

V. Shivnaray.iu.r, 2.82, 518, 

530, 665. 

Sundrammal v. Rar.gasamini, 62. 
Sunkaranarayan v. Rajainani. 320 
Sunkur v. Gowry Per.shad, 276. 

Supdu V. iSakharam, 292. 

Suppamal v. Collector of Tanjore. .t93. 
Sura Bala Devi v. Sudhir Xumar Mukerji, 
561. 

Lakshmiah Chetty v. Kotliand.iram, 
Pillai, 651. 

Suraj V Attar, 617. 

Baksh Singh v. Kedar X.itli. 2.8.5, 

287. 


Balli V. Tilakdhari, 231. 

Bhan Singh v. Sah Chain SiiMi, 
201, 287. 

Bunsi Koer v. Sheo Persad, 389. 

Proshad, 273, 

280,^, 305, 306, 309, 3 13, 347, 
356, 358, 361, 362, 365, 371, 
393. 


-- j.’iji.rain, a 

V. Ratan Lai, 252. 

Prasad v. Makhar Lai, 329. 

V. Makhna Devi, 187 
Suraimaui v. Rahi Nath. 460, 484, 48,5. 

V. Rabinath, 488 

Snrampalli v. Surampalli. 611, 013 ,wn 
.Suraja v. Lakshminarasamiua .14. 
Surayj'^a v. Subbamma '’eg 
Surbomungola v. Mohend'ronath, 49J 

Surendra Krishna Ray 

IJwar Bhubaneshwari Thakuran.' 



TABLE OP CASES. 


Ivii 


S — concld. 

Surendra Nandan v. Sailaji, 540, 557. 

Narayan Sarbhadhikari v. 

.Bholanath Ray Chaudhari, 
. 505, 508, 560. 

Nath V. Atal Chandra. 594. 

V. Sambhunath, 293, 300. 

Surcndrake.shav v. Loorgasundari, 542, 
563, 573, 582, 583. 

Surendranath Basu v. Radha Rani, 41. 

Rasu V. Radha Rani, 176. 

Surrendranath v. Kala Ohand, .573. 
Surreahwar v. Maheshrani, 212, 213, 214, 
217. 

Suriya Ran v. Raja ol Pittapur, 464. 
Suiiyamoni v. Kalikanta, 533. 
Surjyamoni v. Kali Kanta, 533. 

Surti V. Narain Daf^ 102. 

Suryanarayana v. Balasubi-amania, 626, 
627. 

V. Venkataramana, 552. 

Susheela Sundareo v. Bishnupada Dc, 
166. 

Swaminatha Odayar v. Natesa .4ivvar, 
594. 

Swayampakula .Subbaramayya v. 

Swayampakula Venktasubbamma. 524. 
Syed Kasum v. Jorawar Singh, 303, 411. 

T 

Tagore v. Tagore, 21, 88, 303, 443, 440, 
447, 451, 454, 460, 402. 403, 464, 465, 
407, 468, 474, 477, 509, G20, 621. 
Tahaldai v. Gaya Pershad, 43. 

Tahkiir Mani v, Dai Rani, 299. 

Talemand v. Rukmina, 025. 

Taminireddi v, Gangireddi, 267, 275, 302. 
Tara v. Krishna, 41, 100. 

Chand v. Rceb Ram, 247, 274, 

Kiran v. Hari, 596. 

Tarachand v. Nobeen Chunder, 453. 
Tarachurti v. Sureshchander, 554. 
Tarinicharan Chakra barti v. Debcndrala 
Do. .300. 

Tarit Bhiisan Ray v. Srec Tshwar Sridhar 
Salgramoila Thakiir, 408. 

T.vtaVA'a v. P amaknslinamma. 1 82. 
Tayaininaul v. Sasliar'li.alla, 53(> 

Teeluok v. Shaina, 107. 

Tegh Indar v. Harnain, 400. 

Tcj Protap v. Champa, 412. 

Teipal V. Ganiia, .593. 


T — contd. 

Tejrani v. Sarupchand, 558. 

Tekait v. Basanta, 532, 533, 

Doorga Prasad v. Doorga Kon- 

wari, 26. 

Tekchand v. Soman Singh, 227. 

Tellis y. Saldanha, 7. • 

Thockersey v. Hurbhum, 6, 511. 

Thadi MuraU Mohan Beddi v. Medapati 
Gangaraju, 348. 

Thakardwara Pliru Mai v. Ishar Das, 
498. 

Thokar Das v. Msfc. Putli, 293. 

Singh V. Mst. Uttam, 190, 230. 

Thakoor Deyhee v. Rai Baluk Ram, 179. 
Thakur Bai v. Attavar, 530. 

Indraj Bux v. Thakur Sheo 

Naresh, 182. 

Ishri Singh v. Bnldto Singh, 

453. 

Jagraohan v. Musammat Sheoraj, 

488. 

Jai Indra v. Laic Khairati Lai, 

288. 

Prase d v. Mnssamet Dipa Kuer, 

166, 182, 18.3, 192, 197, 203, 
210, 212, 218. 

Rab Prasad .Singh v. Chootay 

Manwar. 609. 

— — ■ S,atrohan .Singh v. Uma Dutt, 
383. 

Seo Mangol Singh v. Thakurain 

Bodhi Kuar, 621. 

Srce Sree Annapurna Dohi v, 

• Shiba Sundari Dasi, 498. 

Thakurain .Taipal v. Bhaiya Inder, 226. 
Thakuxani Tara Kuraari v. Chaturblmi, 
641. 

Thandavaroya v. Shunmugam, 273, 507. 
Thandayuthapani v. Raghunath.i, 422. 
Thangam v. Suppa, 394, 398. 
Thang.athammal v. Arunanhalam, 383. 
Th.angathani v. Ramu, 664. 

Thapita v, Thapita, 532. 

Thayamra.al v. Ann.amalai, 78. 

V. Kuppanna, 588. 

V. Vcnkatarama, 5,54, .550. 

Thukrain v (lovcrnment, 649. 

Tinilcriibai v Attuvar. 6. 

Timapp.i v. Narsinha, 367. 

Tinnouri v, Krishna, 615. 

Tirath Ram v. Mat. Kahan Devi, 50, 77, 
179. 



Iviii 


table of cases. 


T — concld. 

Tirbeni Sahai v. Kamaingh, 201, 488. 
Tirkangauda Mallangauda v. Shivappa 
I’atiV, 559, 584, 585. 

Tirumalachariar v. Andal, 49, 64. 
Tirumamagal v. Kamasvami, 102. 
Tirupatiraju Venkayya, 191, 219. 
Tlriivengadath v. Srinivasa, 511. 
Tiruvengalam v. Butchayya, 541. 

Toolsee Das v. Luckhymoney, 88. 
Toolseydas v. Premji, 262. 

Tosharipal v. District Judge ol Agra, 
(51 A!!. 386), 384. 

Sing District Judge of Agra, 

(56 All. 548), 384. 

Totawa v. Basawa, 41, 140. 
Tottenipudi v. Tottemirudi. 252, 258, 
263. 

I'ribeni v. Raraesray, 365. 

Tribhovandas v. Yorke-Smith, 252. 
Tribhuvan Das v. Gaiigadas, 472. 

Trikam v. Natha, 79. 

Trikangauda v. Shivappa, 6. 

Trikumda.s v. Haridas. 491. 

Trimbak v. Bhagu Bai, 621. 

V. Lakshnian, 506. 

— V. Xarain, 425. 

V. Xarayan, 362. 

V, Xarayan Daniodar. 353, 

365, 367, 368. 

V. Pandurang, 311. 

Balkrifchna v. Narayaii Damo- 

dar, 362. 

Trimbakpuri v. Gangabai, 504. , 

Tripnramba v. Venkataratnam, 553. 
Tryamke.shar v. Babu Basant, 320. 
Tukaram v. Dinkar, 36, 

V. Gunaji, 137. 

— V. Gangaram, 382, 383. 

V. A’arayan. 139. 

■ V. Ramchandra, 303, 572. 

V. Yc“U, 195. 

Tula Ram v. ,Shyam, 15. 

V. Tul.shi Ram, 283, 286. 

Tularam v. Shyamlal, 47. 

Tuljaram v. Mathuradas, 161, 162. 
TuLsba V. Gopal Rai, 606. 

Tulshi Prasad v. Jugmohanlal, 183. 
Tulshiram v. Babu, 329, 332. 

Tulsi Ram v. Behari La!, 1. 

V. Bishnath Prasad, 371. 

Tulsidas v. Vaghela Raisinghji, 601. 


u 

Udai Chunder v. Ashutosh, 183. 

Dat V. Arabika Prasad, 18<>, 187. 

Udaraur v. Ranu, 303, 309,- 310, 312, 
344. 345. 

Ude , Singh v-. Mst. Daulat Kaur, 533, 
611. 

Uddoy V. Jadublal, 337. 

Ujambai v. Harakchand Govindji, 457. 
Ukoor Dos.s v. Chunder, 508. 

Ulagalam Perumal Setliurayaii v. Ram.a 
Subbalakshnii Nachiar, 642. 

Ullat Rai vv Tej Narain, 371. 

Uma Kanta Bhattachariyii v. Bed 
Bati Dcbi, 95. 

Shankar v. Msst Nagesbvuri, 57, 

64. 65, 72. 

Sundari v. Soarobince, 543. 

Umabai v. Bhavu, 102, 

V. Xani, ,580. 

Umaid Bahadur v. Udai Chand, 49. 54, 
55, 57. 

Umakanta v. Biswambhar, 452. 

Uman Parshad v. Gandliarp, 650. 

Shankar v. Mu.s.saraat Aishn, 232. 

Umayal Aohi v. Lakshmi Aehi, 28. 

Umed V. Goman Blioiji, 368. 

Gmrao Kiinwar v. Badri, 226. 

Singh V. Baldoo Singh, 477. 

Umrithnath v. Goureenath, 249, 253, 263. 
United Provinces through Deputy 
Commissioner Harder v. Kanhaij'ala! 
& Ors., 67. 

Unnopoorna v. Gaiiga, 344. 

Upendra v, tlopeenalh, 418. 

Kishore v. Nobo Kishore, 198. 

I>al V. Hemchundra, 481. 

Nath v. Bindesri Prosad, 197. 

208. 

Upoma V. Bholaram, 523, 666. 

Utma Kuar v. Bhagwanta Knar, 602. 


V. R. (!. T. V. R. Chettiar v. C. A. V. C. 

Chettiar, 265. 

Vadali v. Kotipalli, 40. 

Vadilai v. Shah Khushal, 269. 

Vaidyanath v. Aiya.samy, 390, 391, 421. 
428. 

V. .Savithri, 581. 

v. Swaminatha, 491, 512. 



TABLE OF CASES. lix 


V — contd. 

Vaikumtam v. Kallapiran, 390. 
^'^aikuntam v. Kallapiiam (23 Mad. 
, 512), 282, 530, 004. 

j V. Kallajiiram (26 Mad. 

497), 282, 530. 

Vairavan v. Sriniva^achariar, 35, 457. 
Vaitheswara v. Srinivasa, 6.53. 
Vaithialinga v. Srirangath, 222, 223. 
Vaithilinga v. Ayyathorai, 101. 
Vaithilingam v. Murugaian, 584. 

— V. Nates.a, 563, .582. 

Vallabhaclas v. Safcarbai, 78. 

Vallabbram v. Bai Hariganga, 102. 
Vallura v. Saaapu, 187. 

Yalu V. Ganga, 616. 

Yalubai v. Govind, 566. 

Yaman v. Yenkaji, ^79, 582. 
Yandravandas v. Yamunabai, 303. 
Yangala v. Yangala, 177. 

Yannia Kone v. Yanniohi Ammal. 15, 
16, 17. ■ 

Yarada Bhaktavatsahi & Ors. v. Damoji- 
purapa Yenkata Narsiraha Rao, 273. 
Yarada Bhakfcavatsaludu <!' Ors. v. 
Oamoji Purapu Yenkat Nara.simlia 
Rao * Ors., 292. 

Yarada Pillai v. Jeeverathnamraal, 231. 
Varamma v. Gopaladasayya. 228. 
Yarjivan v. Ghelji, 193. 

Ypsartt Rao v. Bebarilal, 211, 220. 
Vasantam Venkayya v. Vasantam 
Raghavammur, 629. 

•Yasircddi Venkayya v. Gopu Srecramulu, 
546. 

Vasonji v. Chanda Bibi, 190. 

Yasudeo v. Narayan, 441. 

V. Venkatesh, 303. 

Vasndeva v. Maguni, 252. 
l^ayidinada v. ApjJu, 502. 

Vedachela v. Snbramania, 12, 13, 28, 29, 
48, 50, 65, 72. 

Yedammal v. Vedanayaga, 43, 100, 103. 
Vedanayaga v. Yedammal, 103. 
Vedathanni v. The Commissioner of 
Income-Tax, 014. 

Veda veil! v. Mangamma, 506. 

Veera v. Balasurya., 545. 

Yeerabadra v. Marudaya, 219. 

Yeeranna v. Sayamma, 573, 

Veerayya v. Chellamma, 615. 


V — contd. 

Veerayya v. Shellamma, 621. 

Velayndhan v. Commissioner of Income- 
Tax, Madras, 247. 

Vella Venkatasnbbayya v. Vella Venkafc- 
ramayya, .302. 3.57, 427. 

Vcllaiyappa v. Nata.rajam, (.50 Mad. 
340), 608, 609. 

Chetty V. Natarajan, (58 

I. A. 402, 55 Mad. 1), 37, 398, 608. 
Velumal Chetty v. Natesachari, 188. 
Venayeck v. Luxumeebaec, 79, 162. 
Yenilal v. Parjaram, 40. 

Venkaji v. Vishnu, 188, 218. 

Venkamma v. Savitramraa, 590. 

V. Subramaniam, 545, 547. 

Venkanna v. Aitamma, 629. 

-r. Marasinham, 225. 

Venkappa v. Fakirgowd.a, 576. 

V. Jiveji, 553. 

Yenkareddi v. Hanmant Gowda, 137. 
Venlrata v. Chellayamrai, 464. 

V. Narayya, 392. 

V. Purushottam, 103. 

V. Subhadra, 566, 567. 

V. Suraneni (31 Mad. 310), 454. 

V. Surenani (31 Mad. 321), 173. 

V. The Court of Wards, 392. 

V. Veera bhadrayya, 177. 

V. Yenkata (1 Mad. 281), 125. 

126, 132, 137, 138. 

— Narasimha v. Rangayya, 569. 

Surya V. The Court, of Wards. 

• 441. 

Venkatadri v. Parthasaradhi, 175, 176. 
Venkatacharyulu v. Mohana, 384. 

V. Rangacharyulu, 518, 

522. 

Venkat.achella v. Chinnaiya, 304, 310. 

V. Thathammal, 441. 

Venkatagiri v. Chandiu, 48, 49. 
Yenkatakrishnamma v. Annapurnamma. 
544, 546. 

Venkatammal v. Andyappa, 401, 625. 
Venkatannrayana v. Somaraju, 294, 296, 
300, 353. 

V. Subbammal (42 

I.A. 125), 166, 167, 
222. 223, 228. 

Siibbamal (43 I. A. 

20), 450, .544, 574. 



lx 


TABLE OF CASES. 


V — contd. 

Venkatanarsimha v. Subba liao, 491, 
492, 573. 

Venkatarama v. Bhnjanga, 160. 

v. Meera, 309, 3l0. 

Venkataramanaya v. Venkataramana, 
374, 377. 316. 

Venkataramanna v. Venka3’ya, 4.57. 

Venkatarayudu v. Sivaramakrishna5-ya, 
319, 390. “ ,, 

Yenkatasami v. Balaniappa, 267. 385. 

V. Viraima, 599. 

Veiikatasomaraju v. A'arahalataju, 300. 

Venkatasubba "Rao v. Ananda Kao, 181, 
186. 

Venkatasubbamma v. Eamayva, 458. 

Venkat.asubramaniam v. Tha j'S ra ramah, 
72. 

Venkateshwara Rao v. Aiidinara-yana, 47. 

Venkateswara v. ]\Iankayammal. 100. 

Rao V. Ammayy'a, 385. 

Veniateswaran v. Saradambal, 588, 598. 

Venkatram v. Chokkicr. 320. 

Venkatraman v. Janardhan, 597, 598. 

Venkatra manna v. Viramma, 653. 

Venkatramaswami v. Imijeriai Bank of 
India, 375. 

Yenkatramayya v. Seshamma, 261. 

Venkayj’a v. Venkata, 596. 

Venkayyamma v. Veiikataramanay- 
yamma, 159, 272, 453. 

Venku v. Mahalinga, 56-t. 

Venkureddi v. Venku Reddi, 312, 390. , 

Venugopal Xaidu v. Lakshmi Ammal, 
533. 

Venugopala v. Ramanadlian, 385. 

A^erabhai v. Bai Hiraba, 534, 553. 

Vibhudapriya v. Lakghmindra, 502, 503, 
504. 

ATdya A’^aruthi v. Balusami, 500, 501, 
514, 515. 

Vidyagavri v. Narandaa, G. 

Vidyapurna v. A''idj'anidhi, 498, 304. 

Vignesswara v. Bapayya, 335. 

Vijaya v. Sripathi, 621. 

Vijayananda Gajpatirais v. Commia- 
aioner of Income-Tax, 638. 

A^ijayaratnam v. Sudarsana, 541. 

Vijaysangji v. Sbivsangji, 550, 557. 

Vijiarangam t. Lakahuman, 86, 143, 146, 
162. 


V- — contd. 

Vinayak v. Battoo, 209. 

V. Govind, 191. 193, 196, 203, 

204. 

V. Govindrav, 573. 

V. Lakshmibai [ (1861), 1 Bom. 

H. C. 117], 162. 

Vinayakrao v. Mankunwarbai, 358. 
A'’irabadra v. Guruvenkata, 323. 
Vuaragava v. Rama'iinga, 551. 
Viraragavamma v. Samudrala, 300. 
Virarnju v. A^enkataratnam, 169. 
A'^iraramuthi v. Singaravelu, COS. 
A'irangauda Lingangauda v. Yelappa 
Shidappa, 67. 

A'irasangnppa v. Rudrappa, 160. 
Virasvami v. Appagvami, 520, 611. 
Virayya v. HanumatTta, 562. 

V. Parthasarthi Appa Rao, 347. 

A''inipaksha Reddi v. Chanalal ,Siva 
Reddi, 311, 317. 

A^rupakshappa v. Nilgangava, 589. 
Visaiakashi v. Siva Ramier, 575. 
Visalalcbi v. Annasamy, 247, 259. 
A^salatchmi v. Subbu, 446. 

Vishnu V. Akkama, 6. 

V. Ganesh, 391. 

V. Manjamma, 616. 617. 

V. Ramchandra, 284. 

ATshvanath v. Krisbnaji, 429, 430. 
Viswanatha v. Doraiswami, 73, 156. 
A’i.swasundara v. Soraasundara, 544, .562. 
A'iswesM'ara Rao v. Suiya Rao, 329. 
A'ithappa v. Savitri, 23, 82, 162, 163. 

u . SXibe, 5f4S. 

Vithal V. Baud, 647. 

V. Prahlad, 401, 402 

V. .Shivappa, 267, 270. 

Tukaram v. Balu Bapu, 146. 

Vithaldas v. Jeshubai, 79, 80. 

A^ithalrao v. Ramrao, 47, 87. 

V. A''ithalrao, 277. 

A'lthilinga v. Vijayathammal, 561. 
Vithoba v. Bapu, 549. 

V. Ha riba, 253, 272. 

Vitim V. Govinda, 617. 

Vitla Butten v. Yaraenamma, 303, 304, 
305, 449, 450, 574. 

Vitta V. Chatakondu, 39.' 

Vrandayandas v. Ykinunabai, 609. 

A'^rij bhukandas VoBai Parvati, 43, 102, 
391. 



TABLE OF CASES. 


Ixi 


V — conoid. 

Vrijbhukandas V. Dayaram, 199. 
VuUubhdas v. Gordhaudas, 464, 4'71. 
VuppulQTi Tattaya v. Garimilla, 181. 
l''yas V. Vyas, 562. 

Vyasacharya v. Venkubai, 576. 

Vydinada v. Nagammal, 482. 
Vythiaiiatba v. Varadaraja, 252. 261. 
Vythinatha Ayyar v. Yeggia Narayana, 
245. 

Vyunkapacharya v. Yamanasami, 652. 

w 

Waghela v. Shckh Alasludin, 594, 595. 
Wahid All Khan v. Tori Ham, 174, 
Wajibun v. Kadir Bukah, 590. 

Walbai v, Heerbai, 561. 

Waaantrao v. Angndrao, 315. 

Watkins v. Administrator-General of 
Bengal, 479. 

Watson & Co. v. Ramehund, 493. 

V. Sham Lai, 595. 

S^zirPeviv. Ram Chand, 488. 
iVomesh Chunder t. Digumburee, 190. 
tVooma V. Srcebarinath, 645. 

Daeo V. Golcoolanund, 523. 

Pershad v. Grish Chuader, 102. 


Y 

Yad Ram v. Umrao Singhs 654. 

Yadao v. Namdeo, 542, 549, 552. 
Yamashetti Bhaushetti v. Ashok Bhau 
Slietti, Go8. 

— • V. Ashok Bhau- 

shebti, 538, 

Yamunabai v. Manubai, 243, 618, 619. 

V. Naravaajg*533. 

Yashvanbrav v. KasHibai, 609, ,612. 
Yasobadra Nainar v. Samanthabadraii, 
392. 

Yekeyamian v, Agniswarian, 395. 
Yellappa v. Tippanna, 260, 261, 264. 
Yellawa v. Bhimangavda, 623. 

Yelumal Chetty v. Natesachari, 41., 
Yelumalai v. Srinivasa, 305. 

Yeaumula v. Yenumula, 236. 

Yeshvanta v. Antu, 216. 

Yeshwanta v. Antu, 581. 

Yethirajulu v. Mukunthu, 484* 

z 

Zipra V. Bomtya, 33. 




PRINCIPLES OF HINDU LAW. 


CHAPTER I. 

OPERATION OF THE HINDU LAW. 


*1. Castes. — (i) The Hindus are divided into four S. 1 
castes (a), namely— 

(1) the Brahmans, or priestly caste; 

(2) the Kshatriyas, or warrior caste ; 

(3) the Vaisyas, or agricultural caste ; and 

(4) the SiRiras. 

Bach of these castes is divided into a number of sub-castes. 


(2) The members of the first three castes are called 
twice-born or regenerate. The second birth or regeneration 
consists in the study of the Vedas or sacred literature and 
in the performance of santskams or sacraments. All these 
are denied to Sudras except the samskara of marriage (6). 

The above classification is vory important. In cases of adoption the adopted son 
must belong to tlio same caste as the adoptive father. In cases of marriage, according 
to one view, the parties to the marriage must both belong to the same caste. As regardis 
Sudras it may be observed that there are several rules of Hindu law which do not apply 
to them, especially those rules which are closely connected with rites and ceremonies, 
such as the performance of datta homam (oblation to fire) in the adoption ceremony. 

Kayasthas . — It has been held by the High. Cciprt of Calcutta that Kayasthas as a 
general rule are Sudras (c). On the other hand, it has been held by the High Courts of 
Allahabad {d) and Patna (f), that they are not Sudras, but belong to one of the three 
regenerate classes, ijrobably Kshatriyas,*^ 

Maratha-3 . — There are three classes of Marathas in the Bombay Presidency, namely, 
(1) the five families, (2) the ninety-six families, and (3) the rest. Of these the first two 
classes are Kshatriyas, and the last Sudras (/). 

Vaidyas . — The Vaidyas of Bengal are Sudras (gr). The Taujore branch of the Mara- 
thas descended from Shivaji belongs to the Sudra and not to the Kshatrij'a caste {h). 
The Madura Ramayana Chavadi Thousand Yadavas residing chiefly in Madura aud 
adjoining villages are Sudras (0- 


(a) Ckuoiurya v. Hahub (1857) 7 31. I. A. 18, 4 
■\V. It. 13->. 

(1)) See Banerjee on Marriage and Stridhann, 
6th ed., pp. 31, 37. 

(c) Raj Coomar Lall v. Bissesur Dyall (1884) 10 
Cal. 688 : J^iia il/oAart v. Nirode Jlokan 
(1910) 20 C. W. N. 901, 35 I. C. 127, ('17) 
Jl. C. 292, on appeal (i920) 47 I. A. 140, 
145, 24 C. W. 704, 798, (’20) A,V.C. 129 ; 
Bhola Nath v. Emveror (1924) 51 Cal. 488, 
81 1 . C. 709, (’24) A. C. 613 ; i?a;na7»diK v. 
Aswini Kumar (’41) 1 Cal. 437, ('41) A. C, 
20 . 


(d) Tulsi Ram v. Bihari Lai (1890) 12 All 328, 
334. 

(c) Tshwari Prashad v. 2?ui ETari Pra-^had (1927) 
6 Pat. 606, 106 I. C. 620, (’27) A. P. 145. 
(/) Sulrrao V. Radha (192S) 52 Bom. 497, 113 
I. 0, 407, (’28) A. B. 295. 

(j?) (’41) 1 Cnl. J37 noted under n. (c) sujtra. 

(A) Maharaja of Kolhapur v. Sundaram (1926) 
48 Mad. 1, 93 I. C. 705, (’25) A.M. 497 
(i) Moolba Kone v. AmtnakuUi Ammal (1928) 
51 Mad. 1 (F B ) (’28) A.M. 299. 



2 


HINDU LAW. 


St. 

2~4 


2. Application of Hindu Law. — The j)ower of the^^'iii^.^ 
of British India to apply the Hindu Hw to Hino^ is 
derived from and regulated by statutes of Parliament and 
by imperial and provincial legislation [see?- 5]. 

Extent of application of Hindu Law. — (f ) The Hindu law 
as amrunistered by the Courts of British India is applied to 
Hindus in some matters only. 

(2) Throughout British India questions regarding suc- 
cession, inheritance, marriage, and religious usages and 
institutions, are decided according to Hindu law, except in 
so far as such law has been altered by legii^Htive enactment. 

(3) Besides the matters above refrrred to, there are 
certain additional matters in which the Hiudu,law is applied to 
Hindus, in some cases by i-irtue of expresS'^legislation, and in 
others on the principle of jus tice, equ ity and good wnscience. 

wills, gifts and partitions. As to these matters also the Hindu 
law is to be applied subject to such alterations as have been 
made by legislative enactment./ 

See the note to the texts at the beginning of Chapter 


4. Acts modifying Hindu Law. — The Hindu law has 
been modified and supplemented in certain respects by the 
following Acts ; — 

(i) The Caste Disabilities Removal Act, 1850. — -According to 
the Hindu law and usage, if a Hindu renounces his 
religion, or is excluded from the commumon of that 
religion, or is deprived of caste, such renunciation, 
exclusion or deprivation entails a forfeiture of his 
rights and property, and deprives him of his right of 
inheritance. The effect of the above-mentioned Act 
was that these consequences ceased to be enforced as 
law in the Courts of British India (j)- The Act is also 
known as the Freedom of Eehgion Act. 

Ail) The Hindu Widows’ Remarriage Act, 1856. — This Act 
legalizes the remarriage of Hindu widows in certain 
cases. 




OPERATION OP THE HINDU LAW. 


3 


The Indian Succession Act, 1925, ss. 57, 214, and Schedule 
III to the Act. — ^These sections are dealt with in the 
chapter on Wills. 

iiv) The Native Converts’ Marriage Dissolution Act, 1866. — 
This Act enables a Hindu convert to Christianity 
to obtain a dissolution of marriage under certain 
circumstances. 


(iva) The Special Marriage Act of 1872 (after amendment 
of 1923). 

/(n) The Transfer of Property Act IV, 1882, as amended by 
Act XX of 1929. — This Act supersedes the whole of 
the Hindu law as to traififer of property, excepting 
certain matters referred to in sec. 129 of the Act. 

(w) The Indian Majority Act, 1875. — This Act, which fixes 

the agp of majority on completion of the eighteenth 
year, applies to Hindus, except in matters of marriage, 
divorce and adoption. 

[vii) The Guardians and Wards Act, 1890. — This Act applies 
to Hindus in cases where a guardian has to be, or has 
been, appointed by the Court. 

[viii) The Hindu Inheritance t^emoval of Disabilities) Act, 1928. — ^ 
. This Act limits the disabilities which excluded a Hindu 
from inheritance and from a share on partition. 

{ix) The Hindu Laiv of Inheritance {Amendment) Act, 
1929 . — -This Act admits the son’s daughter, the 
daughter’s daughter, the sister, and the sister’s son, 
as heirs next after the father’s father and before the 
father’s brother. * 

(x) The Transfer of Property {Amendment) Supplementary 

Act XXI of 1929. — This Act amends the Madras Acts 
of 1914 and 1921, and the Hindu Disposition of Pro- 
perty Act, 1916, which relate to transfers and bequests 
in favour of unborn persons. 

{xi) The Hindu Gains of Learning Act, 1930.— This Act 
makes all acquisitions by means of learning the 
separate property of the acquirer. 

{xii) The Hindu Women’s Rights to Propaty Act XVIII 
of 1937. — This Act, which came into force on the 
14th April 1937, gives new rights of inheritance to 
widows, and strikes at the root of a Mitakshara 
copar^nary. 



4 


HINDU LAW. 


Sfc The following Ar.tj a mny alan to noti ced here : — 

5 The Indian Contract Aci, 1872. — The Hindu law of contracts has been superseded by 

* the Indian Contract Act, 1872 (i). But the rule of domdupaf, by which interest exceeding 
the amount of principal cannot be recovered at any one time, has not been abolished by 
the Indian Contract Act or any other Act. That Rule is applied in the Bombay Presi- 
dency but not in the Madra.s Presidency. In the Bengal Presidency, it applies only to 
the Presidency town of Calcutta. See Chapter XXV^III, “ The Law of Damdupat.” 
c 

The Indian Evidence Act, 1872. — This Act supersedes the rules of the Hindu law 
of evidence. 

The Indian Penal Code . — This Act supersedes the whole of the Hindu Criminal Law. 


5. Enactments refexi'ed to in section 2. — Th.e following 
is a statement in a tabular form, of tbe enactments referred 
to in section 2 above, the Courts to which they apply, and 
the extent to which the Hindu law is to he administered by 
those Courts ; — 

o 

Courts. Enactments. Extent. 


1. High Courts of Cal-lThe Government of “ Jtatters of inheritance and suc- 

eutta, Madras and India Act, s. 112 [5 and cession to lands, rents and goods, 

Bombay in the 6, Geo. 15, c. 61]. See and matters of contract and deal- 

exercise of their see. 223 of the Govern- ing between party and party." 

original civil juris- ment of India Act, 

diction. 1935 [26 Geo. v.c. 2]. 

2. Presidency Small Tbe Presidency Small [The law to be administered by the 

Cause Courts. Cause Courts Act, Presidency Small Cause Court in 

1882, s. 16. each Pre.sidenoy is the same as 

that adm'.nistered by the High 
Court of that Presidency in the 
, exorcise of its ordinary original 
! civil jurisdiction.] 

3. Bengal, United Pro- The Bengah -A.era and , ‘ ‘ .Succession, inheritance, marriage, 

vinces and Assam As.sam. Civil Courts j caste, or any religious usage or 

Provincial Civil Act, 1887, s. 37. institution." 

Courts. 

4. Bombay Provincial Bombay Regulation IV [This Regulation does not specify 

Civil Courts. of 1827, s. 26. any particular extent.] 

5. Madras Provincial The Madras Civil Courts *' Succession, inheritance, marriage. 

Civil Courts. Act, 1873, s. 16. caste, or any religious usage or 

institution.” 

6. Civil Courts in the The Punjab Laws Act, “ Succes-sion, special property of 

Punjab. 1872, s. 5. females, betrothal, marriage, 

1 divorce, dower, adoption, guar- 
: dianahip, minority, bastardy, 

I family relations^ wills, legacies, 

I gifts, partitions, or any religious 
I usage or institution.” 

7. Civil Courts in Oudh. The Oudh tows Act, j Do do do 

{ 1878, s. 3. 

8. Civil Courts in Aj-j The A jmere Courts Eegu- Do.' do. do, 

mere & Merwara. lalion, 1877, s. 4. 

(k) Mailhub Chunier v. /la; Coormr (187,'i) 14 iicn.!. Z. H. 78, 



OPERATION OF THE HINDU LAW. 


5 


Courts. ' I Enactments. 1 Extent, 

i 

9. Civil Courts in Cen- The Central Provinces [As in the Punjab Laws Act, except 
tr51 Provinces, Laws Act, 1875, s. 5. that “ divorce ” is not included.] 

• 

iO. Civil Courts in' The Burma Laws Act,! “ Succession, inheritance, marriage, 
Burma. ' 180S, a. 13. ! or any religious Vsage or insti- 

tution.*’ 

I I 

Though there is no specihc reference to marriage or to religious institutions in 
enactment No. 1, the High Courts have dealt with questions relating to marriage and 
religious institutions according to Hindu law (1). 

A Civil Court has no jurisdiction to try caste questions, unless the suit is in respect 
of a right to propert 3 ’ or to an office. See the Code of Civil Procedure, 1908, s. 9, and 
Bombaj' Regulation II of 1827, s. 21. 

The only enactment which mentions the Hindu law of contracts is enactment No. 1 
whicy relates to Aigh Courts. See notes to sec. 4, “ The Indian Contract Act, 1872.” 

6. Persons governed by Hindu Law.— The Hindu law 
applies — 

{i) not only to Hindus by birth, but also to Hindus by v 
religion, i.e., converts to Hinduism (w). 

Til a case before the Privy Council, a Hindu of theKshatriya caste had an illegitimate 
son J B. by a Jtahomodan woman. J.B. was brought up as a Hindu, and ho was through- 
out his life a follower of the popular idolatrous form of Hinduism. J.B. married a Hindu 
woman of the Kshatriya caste, and ho had a son B.G. by her. One of the points raised 
in the case was that B.G. could not be considered a Hindu, as his father J.B. was a Hindu 
by religion only, and not by birth. Their Lordships, after noticing the arguments 
advanced on the point, said that in the view w'hicli they took of the case it was unnecessary 
to express any opinion on that point (w). ^ 

In a later case before the Privy Council, Lord Shaw, in delivering the judgment of 
the Board, said in effect that the expression ” Hindu ” in the Indian Succession Act 
included a convert to Hinduism (o). 

See sec. 7 (4). 

(i?) to illegitimate children where both parents are 
Hindus (p) : 

(/) III re Kaliandas yaranias (1881) j Ikun. I 228 , Oanexh Muhto v, Shib Charan 

154, 167-lTO. Mahto (J!>33> 11 Putua 139, 13.3 I. V. 195, 

(m) Ahm/iamv. Ai.'iiham (186S) a M. I. A lu9. i <'31) A. H. 305 'olkj-vMis (1923) 51 Wad. 

243 ; Jowala v. DImmm (1800) 10 M.I.A. 1 (F. B.), 108 I. C. 700, (’28) A. M, 200. 

511, 537 : Dii'iree v. PacoiU 0895) 19 (ji) Bhaiya Sher Bahaditr lliiniia 

R'm. 783, 788; In re. Joiepb Vadint oj \ 3(1 AH. 101, 115-110, 41 1. A 1, 14, 22 

Hazareih (1872) 7 Mad. H.C. 121. T, 293. 

A/omrji V. Ailminii,imloT-Genernt (1929) (a) Kaniaimti v. Biqbijai (1921) 48 All. 52,5, 

52 100, 111 T. V. 304, (’28) A. M, | 533, 48 I. A. 3S1, 385, 64 I. 0. 569, (’22) 

1*279 , ShoCeo Xiirain v. iiiHKWi iiiiinari A. 1*C. 14. 

(1922) 50 I, A. 58. 2 Pat. 230, 71 I. C. j (p) Ba ni Ku man, iii the inntter of flSQl) IS 
769, (’23) A. I’C. 21: Palaniappa ChetXy C.ii. 204; Dattntrmia Tatna v. Matka 

V, Alumn C/ietlij (1921) 48 I. A. .539, I BaUl (1934) 58 Boai. 119, 149 I. C. 821, 

44 Mad. 740. 04 T C 4;(n, (’22) A. PC. i (■:)4) A 11 :l<i. 



6 


HINDU LAW. 


{Hi) to illegitimate children where the father is a Christian 
and the mother a Hindu, and the children are brought 
up as Hindus. But the Hindu law of coparcenary, 
which contemplates the father as the head J5f the 
family and the sons as coparceners by birth with 
rights of survivorship, cannot from the very nature 
of the case apply to such children {q) ; 

{iv) to Jains (r), Sikhs (s), and Nambudri Brahmans (t) 
except so far as such law is varied by custom and to 
Lingajats who are considered Sudras {u) ; 

(v) to a Hindu by birth who, having renounced Hinduism, 
has reverted to it after performing the religious 
rites of expiation and repentance (?;), Or even without 
a formal ritual of reconversion when he was recognised 
as a Hindu bj^ his community (w) ; 

(vi) to sons of Hindu dancing girls of the Naik caste 
converted to Mahomedanism, where the sons are taken 
into the family of the Hindu grand-parents and are 
brought up as Hindus (x) ; 

• (mi) to Brahmos (y) and to Arya Samajists ( 2 ) ; 

(vni) to Hindus who made a declaration that they were not 
Hindus for the purpose of the Special Marriage Act, 
1872 {a). 

Ex'planation. -A person who is born a Hindu and has 
not ^I;enounced the Hindu religion, does not cease to be a 
Hindu m erely because he departs from the standard of 

iq) ^ Myna Boyee. v. Oofaram (1801) 8 St. I. A. 400. 

(f) Sheo Singh v. Bakho (1878) 1 All. 888, 5 I. A. 

87 (adoption) ; CMaj/ Loll v, Chunno Lall 
(1878) 4 Cal. 744, 6 I. A. 16 (inheritance) ; 

Sheokvarbai v. Jeoraj (1920) 25 C W. N 
273, 275, 61 I.C. 481 [P. C. j ; Ruyekand v. 

JamiAi Pershad (1910) 37 1.A, 93, 6 I.C. 272 
(adoption); Bhaqivandasy Kaimal {lS7d) 

10 Bom. H. C. 241, p. 247 (adoption) ; 

Thackersey v. Burbhun (1884) S Bom. 

432, p. 453 (Jain temple) ; Pankottam 
V. Venieband (1921) 45 Bom. 754, 757, 

61 I.C. 492, ('21) A. B- 147 [adoption] ; 

Oettappa v. Bramma (1927) 50 Slad. 228, 

99 I.C. 503, (’27) A. M. 228 radoption) , 

Bfiikahat v. Manilal (1930) 54 Bom. 780. 

128 1. C. 628, (*30) A. B. 517 [alienation by 
Jain widow] ; Jaiwanti v. Anandi Dfti 
(1938) 59 All. 196, 173 I.C. 356, (’38) 

A, A. 62 ; Suganchand v. Manaikai (’42) 

Bom. 467, 44 Bom. L. K. 358, 20 I C. 

769, ('42) A. B. 185. 

(s) Rani Bhagwan Koer v. Boss (1903) 31 Cal. 11, 

SO I.A. 249 ; Indir Singh v. Sadkan Sxnah 
(1944) 1 Cal. 233 


(0 Vxthnu V. Akhdmma (1911) 34 Mad. 496, 6 
1. C. 683; Narayan Iyer V. Mooiihi 
Kendm (1938) Mad. 897, (*3S) A.Sf. 643. 

(«) Trikangauda v. Shivappa (1943) Bom. 706, 
45 Bom. L. R. 092, (’44) A.B, 40. 

(v) Kufum V. Salya (1903) 30 Cal. 999. 

(w) Burga Parasada Rao v. Sudarsanasuann 

(’40) A.M. 518. 

(x) Ram Pergaih v. Mmsammat Bahan Bibi 

(1924) 3 Pat. 152, 73 I.C. 749, (’24) A. P. 
420. 

(tf) ihe goode of Gnanendrafiaih Roy 49 Cal. 
1009. 

<*) Mst. Sura} v. Attar (1922) 1 Pat. 706, 718- 
714, 67 I. C. 550, (’22) A.P. 378. 

(a) Vidyagavriy. yarando-f (’28) A.B. 74; 
Punyabratadae v. Manmohan Ray (*34) 
A.P. 427 ; Thukrubai v. AUuvar (1935) 
68 Mad. 1004. earn A M 



OPERATION OF THE HINDU LAW. 


7 


orthodoxy in matters of dietand ceremonial observances (b). The 
acceptance of the “ Granth Sahib ” by the Udassis (a Schis- 
matic sect of Sikhs who remained within the fold of Hinduism) 
is no way inconsistent with their continuing Hindus (c). A 
Hindj .1 does not by becoming a Jati Vaishnava (a sect in Bengal 
not mcognising the caste system) cease to be a Hindu (d). 

Persons to whom Hindu Law does not apply. — The 

Hin^ law does not apply — 

(1) to the illegitimate children of a Hindu father by a 
Christian mother who are brought up as Christians (e), or to 
illegitimate children of a Hindu father by a Mahomedan 
mother (/) ; 

These.are not Hindus either by birth or by religion. 

In s. 6, ols. (itf and (Hi), the mother is a Hindu, but not so here. 

(2) to the Hindu converts to Christianity. Succession to 

the estate of a Hindu convert to Christianity who dies a Christian . 
and intestate is governed by the Indian Succession Act, 1865, 
now Indian Succession Act, 1925. A person ceasing to be a 
Hindu in religion cannot since the passing of the Act of 1865 
elect to continue to be bound by the Hindu law in the matter 
of succession (g) ; ‘ 


Native Christians . — In cases before the, Indian Succession Act, 1865, it was held 
by the Judicial Committee of the Privy Council that a Hindu convert to Christianity 
may, if he thinks fit, continue to be bound by Hindu law. although he has renounced the 
Hindu religion (h), but these decisions are no longer good law. See the Indian 
Succession Act, 1925, s. 58. 

• 

It is not settled ■whether the Hindu rule of survivorship is applicable to the iasailies 
of Native Christians who continue to be joint even after conversion. According to the 
Madras High Court, it is not applicable to such families (i) ; according to the Bombay 
High Court, it is (j). Two Hindu brothers A and B, constituting a joint Hindu family, 
become converts to Christianity and continue to be joint after their conversion. B 
dies leaving a widow. According to the Madras High Court, B's one-half share in the 
property should go to his heirs under the Indian Succession Act, 1925. According to 


(6) 2iani Bhagwan Koer\. Bose (1003) 31 ftal. 11, 
30 1, A. 249 ; Ma Fait v. Maun <7 C/iii (1921) 
49 Cal. 310, 321, 48 I.A, 653, 562, 66 I.C. 
609, (’22) A. PC. 197 : Tetoari Prashad 
V. Jtai Hari Prasad (1927) 6 Pat. 606, 
106 I.C. 620, (’27) A.P. 145 (Kayas- 
tha» of Bihar). 

(c) JHahant Basant v. Bern Singh (192G) 7 Lfih. 

275, 04 I. C. 695, (’20) A. L. 100. 

(d) A^nlvnafrsfia v. Rojani (1931) 56 Cab 1392, 

134 I.C. 1272, (’31) A.C. 741. 

(e) Ifingappa v. Esudasan (1904) 27 Mad, 13 

(mairktenance). 

(/) Charanjil Singh v. Amir Ali Khan (1921 


2 Lah, 243, 246, 64 I.C. 892, (’21) A.L. 

121 . 

ig) Kamawaii v. Digbigai Singh (1921) 43 AIJ. 
525, 48 I.A. 381, 64 I.C. 559, (’22) A. PC. 
14 ; Dagree v. PacoUi (1805) 19 Bom. 783, 
(A) Abraham v. Abraham (1863) 9 M.l.A. 199, 
241 ; Sri Qajapathi v. Qajapathi (1870) 14 
W. R. (P. C.)33. 

(0 TeUis V. Saldanha (1887) 10 Mad. 69. See 
also Jogi Rtddi v. CAinnati Reddi (1929) 
56 I.A. 6, 9-11, 52 Mad. 83, 87-90,^114 
I.C. 5, (’29) A. PC. 13. 

(j) Francis Ohosal v. Oabri Qhosal COO?) 31 
Bom. 25. See Kutada v.‘ -^aripada 
(1913) 40 Cal. 407, 417-418, 17 I.C. 267. 



8 


HINDU LAW. 


Bombay High Court, B’e one-hnlf share should go to A by survj toy ship. The decision 
of the latter Court proceeds on the ground that the Indian Succession Act, 1925, deals 
with inheritance and does not affect rights of coparcenership as between those to whom 
it applies. 

(3) to descendants of Hindus who have formed them- 
selves into a distinct community or sect with a peculiar religioii 
and usagef? so different from the principles of the shastras 
that the community cannot but be regarded as being outside 
Hinduism in the proper meaning of the word. The Kalais of 
Burma constitute such a community. They are not Hindus 
within the meaning either of sec. 331 of the Indian Succession 
Act, 186.5 [now the Indian Succession Act, 1925, s. 58]. or of 
sec. 13 of the Burma Laws Act, 1898 (1:) : 

“ It is obvious that; few influences can be more potent in producing new communities 
of this separate kind than the combined operation of migration, intermarriage and new 
occupations ” (0* 

(4) to converts from the Hindu to the Ilahomedau faith — ■ 

The succession to the c-state of a convert from the Hindu to tlie Maliomedan faith 
is governed hy the Mahomedan, and not by the Hindu laiv. Khojas and Cutohi 
Memons, who are converts from Hinduism to MaliomedauUm, and w'lio, in accordance 
with their customs have hitherto been governed by the Hindu Jaw of inheritance and 
succession will hereafter be governed by the Muslim personal law except where the 
'■'^’iestions relate to agricultural lands (ru/e Act XXV'I of 1037 and .Mulla’s Mahomedan 
Law, nth eilition, p. 3). 

The Hindu law of succession does not apply to the property of any person professing 
the Hindu, Sikh, or Jain, religion who marries under the Special Marriage Act III of 1872 
or the property of the issue of such marriage. These are governed by secs. 32 to 48 
of the Indian Succession Act. 

« 

U) Ma Vaii v. Mau7i^ Chit (1921) 49 CiU. 310, ! (0 Ma Yaxt v Muung Chit (1921) 40 Cal. 310, 

48 I. A. 553, 60 I. €. GOO. ( ’12) V PC. 322, 48 I A. 553, 503. 66 I.C. 609. (’22) 

197. A PC. 197. 



9 


CHAPTER II. 

SOURCES OF HINDU LAW. 

Tez.tSf—1 “ The Veda, the Smriti, the approved usage, and what is agreeable 
to one’iB soul [or good conscience] the wise have declared to be the quadruple direct 
evidence of Dharma [law].” — Manu, ii, 12. 

2. “ The Sruti, the Smriti, the approved usage, what is agreeable to one’s soul 
[or good conscience] and desire sprung from due deliberation, are ordained the foundation 
of Dharina [law].” — Yajnavalkya, i, 7. 

3. “ Whatever customs, practices and family usages prevail in a country shall 
be preserved intact, when it comes under subjection by (conquest).” — Tajnavalkya, 
i, 343. 

4. “ If any usage required by utility is established in a locality [which is contrai'y 
to the written text of law] it should be practised therein only, but not in any other 
district. Whatever customary law is prevalent in a district, in a city, in a town or in 
a village, or amon j the learned, the said law [though contrary to the Smritis] must not 
be disturbed.” — Devala, orted in the Parasara Madham. 

Note . — In texts (1) and (2), we Bnd indications of the principle oi justice, equity 
and good conscience. As to texts (3) and (4), it will be seen that the Courts have not 
disregarded customs prevailing in the different parts of British India, except, of course 
immoral customs. 

8. Sources of Hindu Law.— The three main sources of 
Hindu dharma or law are ( 1 ) the Sruti, (2) the Smriti, and 
(3) Custom. 

(1) “Sruti” means, literally, that which was heard. 
The Srutis are believed to contain the very words of the deity, 
and they include the four Vedas, but they contain very. little 
of law. 

• 

(2) “ Smriti ” means, literally, that whicb was remem- 
bered. - It is the recollection handed down by the Kishis, or 
sages of antiquity, of the precepts of God. The Smi’itis . con- 
stitute the principal source of law. The term Dharma Shastra, 
literally, teacher of law, comprehends both Srutis and Smritis, 
but it is often used to designate the Smritis alone. 

The thi’ee principal Smritis are — 

{i) The Code or Institutes of Manu, compiled some 
time between 200 B.C. and 200 A.D. 

(ii) The Code or Institutes of Yajnavalkya, written 
about the 4th century, A.D. The Mitakshara is 
the leading conamentary upon this Code. 



10 


HINDU LAW. 


Ss. {Hi) The Code or Institutes of Narada, written in io«r 
8-10 5th or 6th century, A.D. 

(3) Customs are supposed by some writers to be based 
on lost or forgotten Sruti, and by others, on lost or forgotten 
Smriti {ni).^ 

9., Commentaries as a source of law. — The Smritis do not 
agree with each other in all respects. The conflict between 
the Smritis gave rise to commentaries which are called Niban- 
dhas. The authority of the several commentators varied in 
different districts, and thus arose the schools of law which are 
operative in different parts of India. Though the commenta- 
tors professed to interpret the law laid dowm in the Smritis, 
in fact, they recited the customs and usages which they found 
in vogue around them (n) and on this ground their inter- 
pretations have been accepted as authoritative. It is therefore 
the duty of British Indian Courts to recognize the rules of 
law enunciated in the commentaries, even if they appear 
to proceed on a wrong interpretation of the Smritis, the reason 
being that under the Hindu system of law, “ clear proof of 
usage will ouWeigh the written text of the law (o).” 


The commentaries which have been accepted as authori- 
tative in the different provinces are mentioned in sections 11 
to 13 below. 


In the leading case of Collector of Madura v. iloottoo Uamalinga to), their Lord8hip» 
of the Privy Council, after stating that the different commentaries had given rise to the 
different schools of law, said : — “ The duty, therefore, of an European Judge, who ia 
under the obligation to administer Hindu law, is not so much to inquire whether a disputed 
doctrine is fairly deducible from the earliest authorities [Smritis], as to ascertain whether 
it has been received by the particular school which governs the district with which he has 
to deal, and has there been sanctioned by uisage. For, under the Hindu system of law, 
clear proof of usage will outweigh the written text of the law." 


10. Judicial decisions as a source of law. — Judicial 
decisions on Hindu law, thougb sometimes loosely spoken 
of as a source of law, are not strictly a source of law. Almost 
all the important points of Hindu law are now to be found 
in the law reports, and to this extent it may be said that the 


(m) G Sarkar’s " Hindu Law,” 7th ed , chap- 

ter I, pp. 24-25 ; Banerjee'a Law of Marri- 
age and Stridhana, 5th ed; pp 11-12. 

(n) Ktiho Eao V, Sudani o Rao (1938) Nae, 489 


(■38) A. N. 163. 

(o) Collector of Madura v. Moottoo Ramatinaa 
(1868) 12 il I. A 397, 435-436. 



SOUKCES OF HINDU LAW. 


11 


(K^isions " on Hindu law have superseded the commentaries. 
T5e decisions of the Privy Council are binding on all the 
Courts of British India including the High Courts ; but the 
decisions of any one High Court are not binding on any other 
High Court, though they are binding on the Courts subordinate 
thereto (p). 

• 

The Hindu law was at first administered by the English 
Judges with the assistance of Hindu Pundits. The institution 
of Pundits, as official referees of the Courts, was abolished 
in the year 1S68. 

11. Mitakshara and Dayabhagal— Schools. — (i) “ The 
remoter sources of the Hindu law [that is, Smritis] are common 
to all the different schools. The process by which those 
schools havejaeen developed seems to have been of this kind. 
Works universally or very' generally received became the 
subject of subsequent commentaries. The commentator 
put his own gloss on the ancient text ; and his authority having 
been received in one and rejected in another part of India, 
schools with conflicting doctrines arose ” (q). 

(2) Properly speaking, there are only two schools of law, 
namely, the Mitakshara school and the Dayabhaga school. 
The Dayabhaga school prevails in Bengal ; the Mitakshara 
school prevails in other parts of British India. 

(3) The Mitakshara is a running commentary on the 
Code of Yajnavalkya. It was wjitten by Vijnaneswara in the 
latter part of the eleventh century. The Dayabhaga is not a 
commentary on any particular Code, but purports to be a 
digest of all the Codes. It was written by Jimuta Vahana 
who is said to have flourished somewhere between the 13th 
and the 15th century. 

(4) The Mitakshara is of supreme authority throughout 
India except in Bengal. The Dayabhaga is of supreme 
authority in Bengal. But even in Bengal the Mitakshara is still 
regarded as a very high authority on ail questions in respect of 
which there is no express conflict betweem. it and the Daya- 
bhaga and the other works prevalent there, namely, the 

(p) Korban Mlu v. Sharoda 10 Oa;l. 82 ; I (^) Collector of Madura v. Moottoo Ramalinga 

Balaji v. ,5aA*7i(Tja7n (1893) 17 Bom. 555. \ (1868) 12 M. I. A. 397, 435. 


Sa. 

10,11 



12 


HINDU LAW. 


Ss. Dayatattwa and tlie Dayakrama Sangraha (r). The Dayabhaj^ 
11, 12 may also be referred to in a Mitakshara case on points to 
which the latter treatise is silent (s). 

(5) It is said that the Mtakshara school is the orthodox 
school, and the Dayabhaga school is the reformed school, of 
Hindu law. The Dayabhaga school is also called the Bengal 
school of Hindu law. 

(6) The Bengal school differs from the Mitakshara school 
in two main particulars, namely, the law of inheritance and 
the joint family system. 


12. Sub-divisions of Mitakshara School. — (7) The Mitak- 
shara school is sub-divided into four minor schools ; these 
differ between themselves in some matters of detail relating 
particularly to adoption and inheritance. All these schools 
acknowledge the supreme authorit}^ of the Mitakshara, but 
they give preference to certain treatises and to commentaries 
which control certain passages of the Mitakshara. This accounts 
for the differences between those schools {t). 


The sub-schools and the works which supplement the 
Mitakshara in each sub-school are mentioned below : — 


Benares school 


Mithila school 


rViramitrodaya («.). 

■ 'hNirnayasindhu. 

J^Vivada Chintamani (y). 
■ ■\Vivada Ratnakara (w). 
fVyavahara Mayukha. 

Maharashtra or Bombay scho6l<( Yiramitrodaya (x). 
[Western India]. [^Nirnayasindhu. 


Dravida or Madras 
[Southern India]. 


rSmriti Chandrika (y). 

I Parasara Madhaviya (z). 
school-] Yiramitrodaya (a). 
[^Saraswati Yilasa (6). 


(r) Bhuyivandeen JiSynn Buee (1867) 11 M. 
I A. 487, 507-308 ; Collector of Madura 
Moottoo hamaHnna (18C8) 12 M. I. A. 397, 
435 ; Akshay Hari Das {W08) 2b Cal. 721, 
(«) Dai Bishenchand v. Asmaida Koer (1884) 
6 All. 560, 11 I. A. 164, 179; Mahabxr 
Prasad v, Paj Bahadur Simjh (1943) 18 
Luck. 585, 203 I.C. 244, (42’) A. 0.27. 

(0 (1867) 11 JI. I. A. 487-507-508, supra. 

(w) Gridhari Lall v. The Benqal Got'cmmeni 
(1868) 12 M. I. A. 448, 466 ; Jagannath v, 
Tlaapi Sxngh (1898) 25 Cal. 354, 367-368. 
(/ ) (1807) 11 M I. A. 487, 508, supra. 


(v) (ld6<) 1] M. I. A. 487, 508, supra ; 
Eamalu Prasad v. Murli Manohar (1034) 
13 Pat. 550, 152 I. C. 446, ('34) A. P. 398 
where Dhavle, J., mentions other works 
which supplement the Mitakshara. 

(*) Vedachela v. Suhrnmama (1021) 48 I. A. 
349, 362, 44 Mad. 753, 764, 64 T. C, 402, 
('22) A. PC. 33. 

Ky) Raju V. Ammani (1900) 29 Mart. 358. 

(1®67) 11 M. I. A. 487, 608, supra. 

(а) Moniram v. Keri Kohtani nssO) 5 Cal. 

788-789, 7 I. A. 115, 153. 

(б) (1921) 44 Mad. 753, 765, 48 I. A. 349, 04 

1. C. 402, ('22) A. PC. 33. supra. 



SOURCES OF HINDU LAW. 


13 


(2) As regards authorities in Western India the 
Mitakshara ranks first and paramount in the Maharashtra, 
Northern Kanara and the Katnagiri District. In Guierat, the 
Island of Bombay and the North Konkan, the Mayukha is 
considered as the overruling authority where there is a 
difference of opinion between it and the Mitakshara ,(c). The 
principle, however, adopted by the High Court of Bombay, and 
sanctioned by the Privy Council, is to construe the two works 
so as to harmonize them with each other wherever and so far 
as that is reasonably possible (d). In Poona, Ahmednagar, 
and Khandesh the Mayukha is considered to be of equal 
authority with the Mitakshara, but not capable of overruling 
it as in Gujerat, the Island of Bombay and the North 
Konlran (e) . 

The Mayukha was written by Nilkantha Bhatta in the 
beginning of the 17th century. 


Ss. 

12 , 13 , 


The Viramjtrodaya was written in the 16th century. “ It supplements many gaps 
and omissions in the earlier commentaries ” (f). 


13. Works on adoption. — The two special works on 
adoption are the Dattaka Mimansa and the Dattaka Chan- 
drika. Generally speaking they are equally respected through- 
out India, but where they differ the Dattaka Mimansa is 
preferred in Mithila and Benares, and the Dattaka Chandrika 
in Bengal (g). 


As to these two works their Lordships of the Privy Council said in Balusu v. 
Baliisu (ft) : “ Both works have had a high place in the estimation of Hindu lawj^ers in 

all parts of India;, and having had the advantage of being translated into English at a 
comparatively early period, have increased their authority during the British rule. Their 
Lordships cannot concur with Mr. Knox, •!., in saying that their authority is open to 
examination, explanation, criticism, adoption, or rejection like any scientific treatises on 
European jurisprudence. Such treatment would not allow for this effect, which long 


(c) Knshnaji v. Pandurang (1876) 12 Bom, II. 
C. 05 ; Ldllubhai v. Mankuvarbai (1878) 
2 Bom. 388, 418 ; Sakharam v. SUabin 
(1870) .3 Bom. 353, 365 ; Balkriskna v 
Lakshman (1800) 14 Bom. 605 ; JanHbai 
V. Sundra (1890) 14 Bora. 612, [Mahad 
is not within the Korthem Konkan jj, 
Narhar v. Bkau (1916) 40 Bom. 621 ; 
30 I. C. 589, CIO) A. B. 206, 

((i)’ Per Telang, J., in Gojabai y. Shrimant Sha* 
fiajirao (18931 17 Bom. 114, 118, approved 
in Bai Kesserbai v. Bunsraj (1900) 30 Bom, 
431, 442, 33 I. A. 176 ; Bhagwan v. Wani- 
bai (1908) 32 Bora. 300, 312; Mahabir 
Prasad v. Raj Bahadur Singh (1943) 18 
Lnck. 685, 203 T. C. 244, (’42) A. O. 27. 
(«) Bhagirthibai v. Kahmijirao (1887) 11 ^m. 
285, 294. [F.B ] 


(/} Yedochela v, Sabramania (1921) 48 I. A. 349, 
362, 44 Mad, 753, 764, 64 I. C. 402, 
(’22) A. PC. 33 ; Jotindra Nath Roy v. 
Nagendra Nath Roy (1931) 58 I. A. 372, 59 
Cal. 576, 135 I. C. 037, (’31) A. PC. 268. 

ig) Balnsu v. Balusu (1899) 22 Mad. 398, 
411-412, 26 I. A. 113, 131, 132 ; Radha 
Mohan v, Hurdai BUn (1898) 21 All. 460, 
465-466 ; Bhagwan Singh v. Bhagwan 
Singh (1898) 21 All. 412, 419, 20 1. A. 153, 
161 ; Puttu Lai v. Parbati Kunwar (1915) 
37 AU. 350, 367, 42 I. A. 155, 1(51, 20 I.C. 
617, (’15) A. PC, 15 ; Collector oj Madura 
V. Mooitoo Rumalinga (1868) 12 il. I. A. 
307, 437. 

(ft) (1809) 22 Mad. 39S, 411-412, 26 T. A. 113, 
131-132. 



14 


HINDU LAW. 


acceptance of written opinions has upon social coustoms, and it would probably disturb 
recognised law and settled arrangements. But, so far as saying that caution is required 
in accepting their glo.sBes where they deviate from or add to the Sinritis, their Lordships 
are prepared to concur with the learned Judge.” 

As to the Dattaka Chandriha it may be said that in Bengal there is a tradition that it 
is a literary forgery by Eaghumani Vidayabhnshana who was the Pundit of Colebrooke, 
the celebrated English translator of numerous Sanskrit works on Hindu law. It is 
said that it was written to help a claim set up by an adopted son to a Kaj in Bengal. 

Before leaving this subject, attention may be drawn also to the Mimansa of Jaimini, 
a work which contains rules of interpretation of Hindu law. 


14. Migration and school of law. — (i) A Hindu family 
jresiding in a particular province of India is presumed, 
(to be governed by the law of the place in which it resides (i). 


(2) Where a Hindu family migrates from one province to 
another, the presumption is that it carries witl\ it its personal 
law, that is, the laws and customs as to succession and family 
relations prevailing in the province from which it came. But 
this presumption may be rebutted by showing that the family 
has adopted the law and usages of the province to which it has 
migrated (j). 


(-3) It is the law existing at the time of migration which 
continues to govern the migrated members until it is 
renounced. It is the law in force in the province at the time 
of their leaving it which continues to govern persons who 
have migrated to another province. Thus they are affected 
by decisions of the Courts of their pro\dnce of origin which 
declare the correct law of the province up to the time of their 
leaving it, but not by customs incorporated in its law after 
they have left it {k). 


lUustratioTis. 


(a) A Hindu family migratcB from the North-Western Provinces where the Mitak- 
shara law prevails to Bengal where the Dayabhaga law prevails. The presumption 
is that it continues to be governed by the Mitakshara law, and this presumption may 
be supported by previous instances of succession in the family according to the Mitak- 
shara law after its migration and by evidence relating to ceremonies performed in the 


(i) Ram Das v, Chandra (1893) 20 Cal. 409. 

(j) SrimaliParbati v. Jagadin (1902) 29 Cal. 433) 

29 I. A. 82 ; Soorendranath v. Heeramonee 
(1868) 12 M. I. i. 81 ; Qovind v. Radha 
(1909) 31 All. 477, 3 I. C. 563 ; Jagajinalh 
V. Narayan (1910) 34 Bom. 553, 7 I. C. 
459 ; Sarada Prasanna v. Umakanla (1023) 
50 Cal. 370, 77 I. 0. 450, ('23) A, C. 485 
See alBo Mailalhi y. StMaraya (1901) 
24 Mad. 650 (migration by ft Hindu widow 
firom French India to British India) “ 
Eulada y. Haripada (1913) 40 Cal 407 


li I. C. 257 ; Sukkbir Singh v. Mangeisar 
Rao (1927) 49 AH. 802, 100 I. C. 
778, (’27) A. A. 252 ; Babu Motiving v. 
Durgabai (1929) 53 Bom. 242, 114 I. C. 
379, (*20) A. B. 67 ; Basanl Kumar Basu 
y. Ram Shanker Roy (1932) 69 Cal. 859, 
13a I. C. 882, (’82) A. C. flOO •, Suganchand 
V. Uangibai (1942) Bom. 407 201 I C 
759 (’42) A. B, 185. 

(i) Batwant Rao v. Baji Rao (1920) 47 I A 213 
48 Cal. 30, 67 I. C. 545, (’21) A. PC. 59. 



SOURCES OF HINUa LAW. 


15 


tamily at marriages, births and aradha^^ showing that the family continued to be governed 
by the Mitakshara law after its migration : Parbati v. Jagadia (1902) 29 Cal. 433, 452, 
29 T. A. 82, 97. If the migration is proved, and it is also proved that the family followed 
the customs of the Mitakshara school, it is not necessary to prove also that the family 
immigrated to Bengal after tho establishment of the Dayabhaga system of law (2). 

(b) ,A joint Hindu family, consisting of two brothers A and B, migrates from the 
N. W. P. to Bengal. A dies leaving a widow C. The presumption being that this family 
continues to be governed by the Mitakshara law, the joint property will, ,n A’s death, 
pass to his surviving brother B ; C will be entitled to maintenance only. But if the 
family had renounced the Mitakshara law, and adopted the Dayabhaga law, A’s share 
would pass to his widow G : Parbati v. Jagadia (1902) 29 Cal. 433, 29 I. A. 82. 

A Maharashtrian family residing in Chhatisgarh, in Central Provinces, is presumed to 
have come as i mm igrant and if it retains its individuality as Maharashtrian, is governed 
by the Bombay interpretation of the Mitakshara ; Keaho Boo v. Sadaaivo Eao (1938) 
Nag. 469, (’38) A. N. 163. 

|7 In Abdurahim v. Halimabai {m), their Lordships of the Privy Council said : “ Where 
a Hindu family migrates from one part of India to another, prima facie they carry with j 
them their personal Jjiw, and, if they are alleged to have become subject to a new local 
custom, this new custom must be affirmatively proved to have been adopted, but when 
such a family emigrate [from India] to another country [East Africa], and, being them- 
selves Mahomedans [e.g., Memons], settle among Mahomedans, the presumption that 
they have accepted the law of the people whom they have joined seems to their Lord- 
ships to be one that should be much more readily made . . . The analogy is that of a 
change of domicil on settling in a new country rather than the analogy of a change of 
custom on migration within India.” “ Of course, if nothing is known about a man 
except that he lived in a certain place, it will be assumed that his personal law is the law 
which prevails in that place. In that sense only is domicil of importance ” (n). 

( Clause (3). — “ The law must be the family law as it was when they left. A judgment 

declaratory of law as having always been would bind ; but it would bo a different thing 
if subsequent customs became incorporated in the law ” (o). 

Eaghuvamahia of Noaduriar.— These migrated from Oudh and settled in Khandesb 
and they are governed by the Benares School of Hindu Law (p). 

15. Custom as a source of* law. — Custom is one of 
the three sources of Hindu law. Wipre there is a conflict 
between a custom and a text of the Smxitis, the custom 
overrides the te^ : “ Under the Hindu system of law, clear 
proSTof usage will outweigh the written text of the law ” {q). 

16. Three kinds of customs. — The Hindu customs recog- 
nized by the Courts of British India are — (1) local, (2) class, 
and (3) family customs. 


{1) Haniesh Chandra v. Mohammed (1923) 50 
Cal, 898, 79 I. C. 309, ('24) A. C. 383. 

(m) (1916) 43 I. A. 33, 41, 18 Bom. L. Tl. 636, S2 

I. C. 413, ('16) A. PC. 86. See also Ma 
Yait V. Maung Chit Maung (1021) 49 Cal. 
310, 48 I, A. 663, 564, 66 I. 0. 609, ('22) 
A. PC. 197. 

(n) Baivanl Rao v. Baji Rao (1920) 47 T. A. 213, 

219, 48 Cal. 30, 39, 57 I. C. 645, (’21) 


A. PC. 59; Tula Ram v. Shvam (1927) 49 
All. 848, 86 I. C. 729, (’25) A. A. 648. 

(o) (1920) 47 I, A. 213, 222, 48 Cal. 30, 43, 67 

I. C. 545, (’21) A. PC. 69, supra. 

(p) Babu Moilsing v. Burqabai (1929) 53 Bom. 

242, 114 I. C. 379, (’29) A. B. 67. 

<^) CoU^ctor of Madura v. MooUoo Rnmahnga 
(1868) 12 M. I. A. 397, 436 ; Vannxa 
Kone V. Vanniehi Ammal (1928) 51 Mad. 
1, 108 I, C, 760, (’28) A. M. 299. 


Ss. 

14-16 



16 


HINDU LAW, 


17. Essentials of a valid custom. — (2) “ A custom is a 
rule which in a particular family or in a particular district, 
has from long usage obtained the force of law. It must be 
ancient, certain, and reasonable, and being in derogation of the 
general rules of law, must be construed strictly ” (r).^ It is 
further essential that it should be established to be so by 
clear and unambiguous evidence, for it is only by means of 
such evidence that the Courts can be assured of its existence 
and of the fact that it possesses the conditions of antiquity 
and certainty on which alone its legal title to recognition 
depends (s). It must not be opposed to morality or public 
policy and it must not be expressly forbidden by the 
legislature {t). 


(2) Where the proof of a custom rests upon a limited 
number of instances of a comparatively recent date, the 
Court may hold the custom proved so as to bind the parties 
to the suit and those claiming through and under them ; but 
the decision would not in that case be a satisfactory precedent 
if in any future suit between other parties fuller evidence with 
regard to the alleged custom should be forthcoming (m). A 
judgment relating to the existence of a custom is admissible to 
corroborate the evidence adduced to prove such custom in 
another case {v). Where, however, a custom is repeatedly 
brought to the notice of the Courts the Courts may hold that 
the custom was introduced into the law without the necessity 
of proof in each individual case (w). 


Family Custom . — Custom binding inheritance in a particular family has long been 
recognized in India {x). 


(r) Uurpurfihad v. Sheo Dyat (1870) 3 I. A, Z30. 
285. 

is) Itamatakshmi v. Sivaitantha (1872) 14 M. 
I. A. 570, 585-585. See as to evidence of 
custom, Gopalayyan v, Itafjhupatxayyan 
(1873) 7 Mad, H. C 250 ; Mxm BxU v. 
Vellayanna (1885) 8 Mad. 464 ; Uarnabah 
V. ilandil (1000) 27 Cal, 379 ; Itupchand 
v, Jambu Prasad (1910) 32 All. 247, 252, 
37 I. A. 93, 6 I. C, 272 ; Abdid Huseia 
Khan v. Bihi Sana Dero (1918) 45 Gal 450, 
45 I. A. 10, 43 I. C. 300, (’17) A. PC. 181 ; 
Ram Narain v. Kar Narinjan Kvar (1923) 
4 La)l. 297, 70 I. C. 535, ('24) A. L. 
116 ; Vannia Kona v. Vannichi Ammal 
(1928)51 Mad. 1, 108 I. C. 700, (’28) A. M. 
299 ; Bhikabai v. Manilal (1930) 54 Bom 
780, 128 1. C, 628, (’30) A. B. 517 ; Gulab- 
chand v. Mannilal (1941) 16 Lnch 302 
192 I. C. 613, ('41) A. O. 2'30. 

(() Vannia Kone v. Vannichi Ammal, supra 
(«) Chiman Lai v. Bari Chand (1913) 40 I.A. 


150, 160, 40 Cal, 870, 800, 19 I. C. 
669 1 Rup Chand v. ,Tambu Parshad 
(1010); 87 I. A. 93, 104, 32 All. 

247, 252, 6 I. C. 272 ; ParshoUam v. 
PenCc/iond (1921) 45 Bom. 754, 760 761 
01 I. C. 492. (’21) A.B. 147. 

(v) Mst. Kttsarbai v. Indtr Sinch (1945) Kae 1. 
71 I. A. 190. 

(uj) ilams Rao v. Rajah of Pithapur (1918) 45 
I. A. 198, 41 Mad. 778. 47 I. C. 364, 
(’18) A. Pc. 81 ; Bemendranatk Roy v. 
Gnansndranalh (’35) A. C, 702, 62 Cal. 
L. J. 49 ; Banarsi Das v. Sumat Prasad 
(1936) 58 All. 1019, 184 I. C, 1047, ('36) 
A. A. 641 ; Bemendranath Ray Chaudhari 
V. Jnanendra Prasanna Bhaduri (1936) 
83 Cal. 165, 159 I. C. 1101, ('35) A. C. 702 ; 
Suganchand v. Mangibai (1942) Bom. 
467, 201 I. C. 739, (’42) A. B. 186. 
lx) Abdul Busein Khan v. Biii Sana Beta 
(1918) 45 Cal. 450, 400, 45 I.A. 10, 14 48 
I.C. 306, (’17) A.PC. 181. 



SOURCES OF HINDU LAW. 


17 


18. Discontinuance of custom. — A family usage, like a 
local custom, must be certain, invariable and continuous, hut 
it may he discontinued so as to let in the ordinary law. Well 
established discontinuance of a family usage, whether it has 
arisen from accidental causes, or has been intentionally brought 
about by the concurrent will of the family, has the effect of 
destroying the custom ; it is different, however, nn the case 
of a local custom which is the lex loci binding on all persons 
within the local limits in which'it prevails (y). 

19. Burden of proof of custom. — Where members of 
a family admittedly governed by the Hindu law set up a 
custom derogatory to that law, the burden lies upon them to 

* prove the custom ( 2 ). In the case of a tribe or family which 
were not originally Hindus, and have only adopted Hindu usages 
in part, if itns alleged by any member that a particular Hindu 
usage has been adopted by the tribe or family, the burden lies 
upon him to prove the usage (a). 

The Kurmi Mahtons of Chota Nagpur, though aboriginals in origin, have accepted 
the Hindu religion and Hindu social usages. The presumption in law will, therefore, he 
that they are governed by the Hindu Law of Succession and the party who alleges a 
special custom to the contrary has to prove the same (b). 

20. Invalid custom. — ^No custom is valid if it is opposed ' 
to morality or public policy or to any express enactment of 
the Legislature. 


iy) Bajkishen v. Jiainjoy (1870) 1 Cal. 186, 196. 
[P.C.l ; Sarabjit v*. IncUirjit (1905) 27 All. 
203 ; Fannia Kone v. Vannichi Ammalt 
supra. 

(z) Bhugwan Singh v. Bfmgwan Sin^h (1899) 
21 All. 412, 423 ; Chandika Baksh v. 
Muna Kuar (1902) 24 AU. 273, 29 I,' A. 70 ; 
Rupchavd V. Jambu Parshad (1910) 37 1.A. 
93, 32 All. 247, 6 I. C. 272 ; Sahdeo Narain 
Deo V. Kusum Kumari (1923) 60 I. A. 
58, 62-64, 2 Fat. 230, 71 I. C. 769, ('23) 


A, PC. 21 ; Shamlul v. Jiyabai (1948) Xag. 
678, (’44) A. N. 62. 

(a) Fanindra Deb v. Bajcsicar (1885) 11 Cal. 
• 463, 476, 12 1. A. 72, 88 ; Muhammad 

Ibrahim Shaikh Ibrahim {1922) 49 I.A. 
119, 45 Mad. 308, 67 I. C. 115, (*22) 
A.PC, 59. 

(5) Ganesh Mahto v. Shib Charan Mahto (1932) 
11 Pat, 139, 133 T. C. 165, (’31) A. P. 
305. 


Ss. 

18-20 



18 


CHAPTER III. 

GENERAL PRINCIPLES OF INHERITANCE. 


Sfc 21. Law of inheritance. — The joint and undivided family 

is the normal condition of Hindu Society. An undivided 
Hindu family is ordinarily joint, not only in estate, but in 
food and worship. 

The joint family system comes first in historical order. 
The law of inheritance is of lat.er growth and, in general, applies 
only to property held in ab^Iute severalty by the last owner, 
,as distinguished from property held by a Mitakshara joint 
‘family. But now under Act XVIfl of 1937, the interest 
which a Hindu, governed by any school of law other than the 
Dayabhaga or by customary law, has in joint family property, 
devolves upon his death on his 'widow. 

22. Two syajms ^ inheritance. — There are ‘two systems 
of inheritance amMgst the Hindus in British India, namely, 
the Mitakshara system and the Dayabhaga system. The 
Dayabhaga system prevails in Bengal ; the Mitakshara system 
^ in other parts of British India. The difference between the 

two Systems arises from the fact that while (the doctrine of 
rehgious efficacy is the guiding principle under the Dayabhaga 
school (sec. 79) there is no such definite guiding principle under 
the Mitakshara school. Sometimes, consanguinity has been 
regarded as the guiding principle and at other times, religious 
efficacy (sec. 36 ei seq.)j 

23. Inheritance to males and females. — (J) Succession 
to stridhana, that is, property held absolutely by a feymle, 
is governed by rules different from those which govern 
inheritance to the property of a 7nale. 

( 2 ) Inheritance to males according to the Mitakshara 
school is dealt with in Chapter IV and that according to the 
Dayabhaga school is dealt with in Chapter VII. Succession 
to stridhana is dealt with in Chapter X. 

24. Modes of devolution of property.— (i) The Mitakshara 
recognizes two modes of devolution of property, namely, 
survivorship and succession. The rule of survivorship applies 
to joint family property ; the rules of succession apply to 
property held in absolute severally by the last owner. 

(2) The Dayabhaga recognizes only one mode of 
devolution, namely, succession. It does not recognize the 



GENERAL PRINCIPLES OP INHERITANCE. 


19 


rule of survivorship even in the case of jqin^ family- property. 
The reason is that while every member of a Mitakshara joint 
family has only an undivided interest in the joint property, a 
member of a Dayabhaga joint family' holds his share in 
quasi-severalty, so that it passes on his death to his heirs as if 
he was absolutely seized thereof, and not to the surviving 
coparceners as under the Mitakshara law. 

lUustrationa, 

(1) A and J5, two Hindu brothers, governed by the Mitakshara school of Hindu 
law, are members of a joint and nncivided family. A dies leaving his brother B and a 
daughter. .*4’s share in the joint family property will pass to his brother, the surviving 
coparcener, and not to his daughter. But if A and B were separate, -4’s property 
would on his death pass to his daughter as his heir. 

(2) A and B, two Hindu brothers, governed by the Dayabhaga school, are members 
of a joint and undivided family. A dies leaving his brother B and a widow. i4’s share 
in the joint famil 3 »property will pass to his widow as his heir, exactly as if A and B were 
separate. '' 


Ss. 

24-26 


25. Female heirs.— According to the Bengal, Benares 
and Mithila schpdls, there are only^^^^e femal^S'^ho can 
sucked as hek^o a male, namely, (Ud;he widow, (2) daughter, 
mother, (4Yfatli|r’s mother, and T(S) father’s father’s mother. 
To this list three more have been added by the Hindu Law 
of Inheritance (Amendment) Act, 1929, namely, the soii’^s 
daughter, daughter’s daughter, and sister. The Madras school 
recognizes a larger number of female heirs including the three 
mentioned in the Act of 1929, and the Bombay school a., still 
larger number. Under Act XVIII of 1937, the widow of a 
predeceased son and the wido\y of a predeceased son of a 
predeceased son are among the heirs to a Hindu’s separate 
property in all the schools. 


26. Limited estate of females. — (i) Males succeeding as 
heirs whether to a male or to a female, take absolutely. 

(2) Females succeeding as heirs, whether to a male or 
to a female, take a limited estate in the property inherited by 
them, except in certain cases in the Bombay Presidency. 

If a separated Hindu under the Mitakshara, or any Hindu under the Dayabhaga, 
dies leaving a widow and a brother, the widow succeeds to the property as his heir. But 
the widow, being a female, does not tak^ the property absolutely. She is entitled only 
to the income of the property. She cannot make a gift of the property nor can she sell 
it unless there is a legal necessity either for the gift or for the sale. On her death, the 
property will pass not to her heirs, but to the next heir of her husband, that is, his brother. 



20 


HINDU LAW. 


Ss. 27. ‘Last full owner’ and ‘fresh stock of descent.' — The 

28 iagi; ‘ ’ owner of property is one who held the property 

absolutely at the time of his death. Except in the case of 
stridhana and in certain cases in the Bombay Presidency, the 
last full owner is always a male. 

It is only a ‘ full ’ owner that can become a fresh stock of 
descent. Since a female cannot (except as aforesaid) be a full 
owner of property, she cannot become a fresh stock of descent . 

Illustrations. 

A dies leaving a •n’idow, a mother, a brother/?, and a paternal uncle C. On A’s 
death, the widow succeeds to his property as his heir. She takes only a limited estate 
in the property. She is not the full owner of the propetfcy, and she cannot, therefore, 
become a fresh stock of descent. On her death, the property will revert to the nc.'ct heir 
of the last full owner (A), that is, the mother. The mother, again, does not 
take absolutely. She too, therefore, cannot become a fres.h stock of descent, and on her 
death the property will go not to her heirs, but to the next heir of the last owner (A), 
that is to B, .d's brother. But B, being a male, takes the property absolutely. He 
becomes full owner of the property and he can, therefore, become a fresh stock of descent. 
'On his death, the property will pass t^ns own heirsT' T’hus if he leaves a widow, the 
property will pass to her, and not to G. But since she takes a limited estate only, the 
property will, on her death, revert to the next heir of B, the last full owner. If that 
heir is C. the property will pass to him. C. being a male, will take the property ab.sulutely 
and on his death it will^again pass to his heirs. 

A male heir take.s the property inherited by him absolutely ; he becomes full owner 
thereof, and he can, therefore, become a fresli stock of descent. Except in the case 
of stridhana and in certain cases in the Bombay Presidency, a female takes a limited 
estate in the property inherited by her : she does not become the full owner thereof, 
and she cannot, therefore, become a fre.sh stoclTof descent- The limited estate taken 
by female heirs is a peculiar feature of the Hindu law. Barring, therefore, the case 
of stridhana and the exceptional eases in the Bomba}' presidency, when a female dies 
leaving property inherited by her, whether from a male or from a female, the property 
passes not to her heirs, but to the neyt heirs of the last full owner from lohoiu 
' she inherited it. 

A woman’s stridhana descends to her own heirs. Seo Chapter X below. 

28. Inheritance never in abeyance, — (i) On the death 
of a Hindu, the penson who is then his nearest heir becomes 
entitled at once to the property left by him. The right of 
succession vests in him immediately on the death of the owner 
of the property. It cannot under any circumstance remain 
in abeyance (c) in expectation of the birth of a preferable heir, 
where such heir was not conceived at the time of the owner’s 
death. , ■' • 

(2) Where the estate of a Hindu has vested in a person 
who is his nearest heir at the tim’e of his death, it cannot be 


(c) Sm. Shakuniala Devi v. Kaiishalya Devi 
(1936) 17 Lah. 356, (’30) A. L. 174, 162 
I. C. 718 ; Snnivasa liao Ors. v. 


Annadhanam Seahachadu ct* Ors. (1942) 
Mad. 42, 198 1. C. 169, (’42) A. M. 106. 
2M.L,J.4O0. 



GENERAL PRINCIPLES OF INHERITANCE. 


21 


divested except either by the hiHli of a preferable heir such as 
a son or a daughter {d), who was conceived at the time of his 
death, or by adoption in certain cases of a son to the deceased (e). 

llluat rations . 

(1) A flies leaving a son who is insane from birth, and a nephew. The son, being 
insane, chnnot inherit according to the Hindu law. A's property will, therefore, pass 
to the nephew. The son marries, and a son B is subsequently born to hii®.. B, aa id’s 
grandson, is a nearer heir of A than the nephew. B claims .4’s property from the 
nephew. He is not entitled to it, for the estate of A having vested in the nephew, it 
cannot be divested, by the birth of B, unless B was conceived at the time of .d's death. 

(2) A Hindu dies leaving a widow who is pregnant at the time of his death. After 
his death the widow sells a house left bj'’ him for necessity. Five days after the sale a 
son is born to her. The sale is valid, though it was made while the son was m his 
mother s womb. The point of time at which the widow's estate is divested is the date 
of the son's birlhy and not the date of his father’s death : Hira v. Buta (1919) 1 Lah. 
L.J. 36, 56 LG. 256. 


29. Doctrrye of representation. — A. son, a grandson whose 
father is dead, and a great-grandson whose father and 
grandfather are both dead, all succeed simultaneously as one 
heir to the separate and self-acquired property of their 
paternal ancestor. The reason is that the grandson represents 
the rights of his father to a share and the great-grandson 
represents the rights both of his father and grandfather. This is 
the only case to which the doctrine of representation applies ; 
it does not apply to any other case (/), e.g., the case of 
daughter (g). Sons, grandsons, and great-grandsons inheriting 
together as aforesaid succeed to the state of the deceased as 
coparceners [sec, 31 , ill. (a)]. On a partition among them they 
take per stirpes and not per capita. 

Illustrations. * 

(a) A, a, male Hindu, dies leaving a son B, a grandson (7, a great-grandson D, and 
a great-great-grandson E, as shown in the following diagram : — 

A 

! 



X, 


1 

X, 

1 

1 

D 

X, 


T 


E 


{d) Bafjava v. Panatuia (1933) 3j Bora. L, U. 

118, 144 I.C. 442, (*33) A.B. 126. 

(e) NUcomul v. Jotendro (1881) 7 Cal. 17S, 188 ; 
Kalidas v. Krishna (1809) 2 Ben«. L.R. 
P.B. 103 ; Taoorev. Tagore (1872) 9 Beng. 
L. R, 377, 397 ; Bamundoss v. Tarinee 
(1858) 7 M.I.A. 169, 184, 200 ; Narasimha 
V. Veerabhadra (1894) 17 Mad. 287 ; 


Gordhandn<i v. Bai Bameooier (1902) 26 
Bom. 449, 467 ; Hira v. Btita (1910) 
1 Ball. L.J. 36, 56 1 C. 256, (’20) A.L, 100 
(/) See Manidayi v. BoMUami (1007) 30 
Mad. 848. 

((?) Mussammat Lorandi v. Mst. Nxhal Devi 
(1926) 6 Lah. 124, 95 T.C. 701, (’2f)) 
A. L.403. 


Ss. 

28,29 



22 


HINDU LAW. 


Ss. 

29,30 


On A’a death, his estate will pass to B, G and D as coparceners. If they continue 
joint, and if any one of them dies without leaving male issue, his share will pass to the 
survivors (sec. 229). If they want to divide the estate, it will be divided into three equal 
parts, B, C and D, each taking one part.' B alone is not entitled to inherit the whole 
property. C will take the share of his father X, and D the share of his grandfather 
B is hot entitled to any share at all, for he is more than four degrees removed from 
Ay and the right of representation does not extend beyond four degrees. 

(h) A, S' male Hindu, dies leaving a son, B, two grandsons C and Oj, and three 
great-grandsons D, Dj andD, as shown in the following diagram : — 


I 

X 

I 


X,. 


D D, 


D, 


A's property will be divided, if the heirs choose to divide it, into three equal paits 
of which B will take one, C and Cj will together take one, and D, Dj and will together 
take one. This is a division of the estate p^rji tirpe s. To divide it per capita would be 
to divide it into 6 parts, and give one part to each of the 6 heirs. ' ' 


Note. — If B had a son Sj, B would take the one-third for himself and Bj, and it 
would become ancestral property in the hands of B, to which B^’s right would attach 
by birth. 


(c) A, a separated male Hindu, dies leaving a brother B, and a nephew C, being 
the son of a predeceased brother D. On A’s death, C claims half the estate, alleging 
that had his father D been alive he would have taken one-half, and that he (C) is entitled 
to that half as representing his father. C’s claim must be rejected, for the right of 
representation is confined to the lineal male descendants of the deceased owner as stated 
in the section, and C is not such a descendant. B therefore is entitled to the whole 
estate as the nearest heir of A, 


30. Spes successionis.— ^The right of a person to succeed 
as heir on the death of a Hindu is a mere spes successionis , 
that is, a bare chance of succes.sion. It is not a vested interest ; 
he cannot, therefore, make a valid transfer of it {h). For the 
same reason, any agreement entered into by him in respect 
of the inheritance cannot bind persons who actually inherit 
when the succession opens (t). 

Illustration. 

A has a brother B and an uncle C. B has a wife D. It is true that if A died B 
would succeed as his nearest heir if he was then alive, but in the lifetime of A B does 
not take any interest in A’s property. All that he is entitled to is a bare cLnce of 
succession. If he predeceases A, the heir on A’s death will be C, and not his widow 
DJsee ill. (c) to sec. 29]. B does not take any interest in A’s property in A’s lifetime 


Sahadvr Smi/h v. Mohar Smg/i (1902) 24 
-411. 94, 20 I. A. 1. 


(/i) See Transfer of Property Act, 1882 s « 
(i) Brojo V. G'oiircc (1870) 13 W. U. 70. bee 



GENEKAL PRINCIPLES OF INHERITANCE. 


23 


and he cannot transmit to his heir D an interest which had not accrued to himself. For 
the same reason, a sale or a mortgage by B of the ayes a uccesa ioni^i^ a nullity. And, 
further, if he makes any contract with respect to*?h.e inheritance in A’s lifetime, and 
predeceases A, and C succeeds as A’s heir, the agreement is not binding on C. 

3L *Co-heirs. — (i) According to the Mitakshara school 
two or more persons inheriting jointly take as tenants-in- 
common {j) except the following four classes of heirs* who take 
as joint tenants with rights of survivorship : — • 

(a) Two or more sons, grandsons, and great-grandsons, 

succeeding as heirs to the separate or self-acquired 
property of their paternal ancestor {k). 

(b) Two or more grandsons by a daughter, who are 

living as members of a joint family succeeding 
as^heirs to their maternal grandfather (1). 

(c) Two or more widows succeeding as heirs to their 

hirsband (w). 

(d) Two or more daughters succeeding as heirs to their 

father («), except in the Bombay Presidency 
where they take an absolute estate in severalty (o). 

(2) According to the Dayabhaga school two or more 
persons inheriting jointly take as tenants-in-common, except 
only (1) widows, and (2) daughters who take as joint tenants 
with rights of survivorship. 


IllustratioTi^, 

(a) A Hindu, who is possessed of separate property, dies leaving two sons, A and 
B, A then dies leaving a daughter C. 

According to the Bengal school, A and B inherit as tenants-in-common, and, therefore, 
on A.*s death, his share in the property goes to his Aeir C by aucceasion. 

According to the Mitakshara school, A and B inherit as joint owners [strictly speak- 
ing, as coparceners (sec. 29)]. Therefore if A dies without having partitioned the property, 
his undivided interest in the property will pass to his brother B by survivorship to the 
exclusion of his daughter C. But if the property was partitioned between A and B, the 


(j) Kartippai v. Sankaranarayatian (1904) 27 
lUiad. 300. 

(Jfc) Raja Jogendra v. Nityanand (1890) 18 Cal. 
151, 17 I. A. 128 ; Madwalappa Irappa v. 
S^lbbappa Shankarappa (1937) Bom. 900, 
89 Bom. L. R. 895, ('87) A-B. 438, 172 
I.C. 184 ; Shyain Behari Sinih v. Ramesh’ 
war Prasad Sahu (1941) 20 Pat. 904, 198 
I.C. 208, (’42) A.P. 213. 

(0 Raja Venkayyamma v. Venkataraimnay-^ 
yamma (1002) 25 Mad. 678, 29 I.A. 156 ; 
Muhammad Hussain Khan v. J3ab^t 
Kishwa Nandan Sahai (1937) 64 I. A. 


250, (1937) All. 655, 39 Bom. L. R. 979, 
160 I. C, 9, ('37) A. PC. 233. 

(to) Bhuyicanden v. Myna Baee (1S66)*'11 M. 
I. A. 487. 

(n) CAotav Lall v, Chunno Lall (1879) 4 Oal. 

744, 6 I. A. 15 ; Aumirtolall v. Rajonee- 
kant (1875) 2 I. A. 113, 126, 16 Beng. 
L. R. 10, 24 1 Raja Venkayyamma v. 
V enkataramanayyamma (1902) 25 Mad. 
678, 29 I. A. 156 ; Chhattar Singh v. 
Bukum Knnwar (1936) 58 All. 391. 

(o) V-Uhappa V. Soiilri (1910) 34 Bom. 610, 

7 I. C, 445, 


Ss. 

30,31 



24 


HINDU LAW. 


share which came to .4 on partition would go to his heir C by succession. AsMiming 
that A and B did irot divide the property, and that A died leaving a son, grandson, or 
yreiU-(jraudsun, the undivided interest of A would pass to his son, grandson or 
great-grandson by aurvicorship, in preference to his undivided brother B. The reason is 
that the right of survivorship of nude issue always prevails over that of a collateral 
with whom the deceased was joint. 

(b) A. Hindu dies leaving two widows A and B. According to both the schools, 
the widows succeed as joint tenants. On A’s death, therefore, her interest in the property 
will pass to B by survivorship [sec. 43, no. 4]. 

(c) A Hindu dies leaving two daughters A and B. According to both the schools 
they succeed as joint tenants. On ,4’s death, therefore, her -undivided interest in the 
property will pass to B by survivorship. It is different, however, in the Bombay Presi- 
dency. In that Presidency A and B take an absolute estate in severalty, and not as joint 
tenants. Therefore, on A’a death, her one-half share will pass to her own heirs by 
succession. Thus if A dies leaving a daughter, her share will go to her daughter, and 
not to her sister B [sec. 43, no. 5]. 

(d) A Hindu dies leaving two brothers. The brothers take as tenants-in-common 
and on the death of either of them, his one-half share wUl pass to his heirs by succession. 
The same rule applies to uncles, nephews, etc. 

32, Successions per stirpes and per capita. — Except in 
the two cases hereinafter mentioned persons of the same 
relationship to the deceased take per capita, that is, the estate 
of the deceased is divided into as many shares as the number 
of heirs, each heir taking one share. 

Exception I. — On a partition among them, the sons, 
grandsons and great-grandsons of a deceased male Hindu, 
take per stirpes [sec. 29]. 

Eocception II. — Sons’ sons, daughters’ sons, and daughters’ 
daughters, succeeding to stridhan take per stirpes (p)[see. 160]. 

Brothers’ sons, uncles’ sons, etc., take per capita. Thus if a Hindu dies leaving 
2 sons by one brother and 3 sons by another brother, the property will be divided into 
/ 5 equal parts, each heir taking onc-fiftb. This is division of the estate per capita. To 
fTlivide i t per stirpes would be to divide it into 2 equal parts, giving one'pafFto~tlie 2 
■ sons oi one biotheij and the other part to the 3 sons of the other brother. The reason 
-why they take per capita is that the brothers’ sons do not inherit as representing their 
father but in their own right as the nephews of the deceased (see sec. 29). Similarly, if a 
Hindu dies leaving one son by a paternal uncle and two sons by another paternal uncle, 
the estate will be divided into three parts, each son taking one-third (g). 

Exception I and Exception II both rest on special texts. For an illustration of 
Exception I, see sec. 29, ill. (b). For an iUustration of Exception II, see the illustra- 
tion to Bee. 160. 


ip) Fide authorities cited under ser. 100. I (f) Narsappo v. B/ioraiappa (1021) 45 Born 296 

I oO I. G. 251, ('21) A. B. 408. 


Ss. 

31,32 



25 


CHAPTER IV. 

ORDER OF INHERITANCE TO MALES ACCORDING TO THE 
MITAKSHARA LAW. 

“ Sons (male issue) take the father's property. To the nearest sapinda the inheritance 
next belongs.” — Manu, ix, 187. 

33. Mitakshara law of inheritance. — The rules o? inherit- 
ance laid^hown in the Mitakshara are followed by the 
Bombay, '%Iadras, Benares and Mithila schools, all these 
schools being sub-divisions of the Mitakshara school. But 
the rules of inheritance in force in the several pro\dnces 
represented by these schools are not entirely the same. They 
differ in certain respects, namely, 

(1) The order of inheritance as laid down in the Mitak- 
shara is not strictly followed in the island of Bombay, Gujarat 
and the North Konkan. The reason is, that in those places pre- 
ference is given to the Vyayahara Mayukha of Nilkantha Bhatta 
in the few points on which it differs from the Mitakshara. 

(2) As regards females, there are many who are 
recognized as heirs in the Bombay and Madras schools, but are 
not recognized as such in the Benares and Mithila schools 
[ss. 61-70]. 

34. DevolutMn of property according to the Mitakshara 
law.- — In determining tlie mode in which the property of a 
Hindu male governed by the Mitakshara law devolves on his 

death, the following propositions are to be noted ; — 

• 

(1) Where the deceased was, at the time of his death, a 
member of a joint and undivided family, technically called 
coparc enary , his undivided interest in the coparcenary property 
devolves on his coparceners by survivorship. (But now see 
Act XVIII of 1937 and sec. 35). 

(2) {%) Even if the deceased Avas joint at the time of his 
death, he might have left self-acquired or separate property. 
Such property goes to his heirs by succession according to 
the order given in section 43, and not to his coparceners (/). 

(u) If the deceased was at the time of his death the sole 
surviving member of a coparcenary, the whole 'of his property, 


Ss. 

33,34 


(f ) Kata ma Katchiar v. 2'he liajah of Shv agunga 
(1863) 9 II. I. A. 543 ; Periasami v. 


Periasflwi (187B) 1 Mad. 312, 5 I. A. 61. 



26 


HINDU LAW. 


Ss. 

34.35 


including the coparcenary property, will pass to his heirs by 
succession according to the order given iii section 43 (s). 

(m) If the deceased was separate at the time of his 
death from his coparceners, the whole of his property? however 
acquired, will pass to his heirs by succession according 'to the 
order givgn in section 43 (t). 

(3) If the deceased was re-nnited at the time of his death, 
his property will pass to his heirs by succession according to 
the rule laid down in sec. 60 below. 


Illustration. 

A. B. and hia brother constitute a coparcenary. A. B. dies leaving a daughter. He 
leaves self-acquired property. He also leaves property inherited by him from his maternal 
uncle, which, according to law, is his separate property. The undivided interest of 
A. B. in the coparcenary property will pass to his brother as surviving coparcener, but 
his self-acquired and separate property will pass to his daughter as his heir. 

35. Act XVIII of 1937. — The Hindu Women’s Eights to 
Property Act (XVIII of 1937 amended by XI of 1938) has 
introduced important changes in the law of succession. The 
Act is not retrospective. Its main features are : 

(1) In the case of separate property, 

, (a) the widow along with the sons is entitled to the 
same share as the son. 

(b) A pre-deceased son’s widow inherits inlik^Manner 
as the son, if there is no son surviving of such pre- 
deceased son ; ^and in hke manner as £ ^son’, §..smA 
if there is surviving a son or son’s son of such pre- 
deceased son. 


(c) The same provision applies mutatis mutandis to the 
widow of a pre-deceased son of a pre-deceased son. 


(2) In the case of a Mitakshara joint family the widow 
takes the place of her husband [vide App. XII). 


General effect of the Act . — Whilst the Act has conferred 
new rights of succession on certain females, it has dealt a 
death blow to the doctrine of survivorship — perhaps the most 
important part of -the law of coparcenary under the Mitakshara. 


(<) 


Naqalutchmee v. Gopoo 
M. I A. 309. 


Xadaraja (1853) 6 


(0 Tekait Doorga Persad v. Doorga Konwai 
(1878) 4 Cal. 190, a0€, 6 I.A. 149, 160. 



MITAKSHARA SUCCESSION. 


27 


Speaking generally, the effect of the Act is to put the three 
female heirs mentioned in sub-section 1 to section 3 on the same 
level as the male issue of the last owner along with the male 
issue or imdefault of them. The Act has also put the widow of a 
member of a joint family in the place of her deceased husband, 
and the husband’s interest in the joint family property under the 
Mitakshara vests immediately upon his death in the widow 
by succession and not by survivorship (m), of which she can 
claim partition in her own right and independently of any 
partition taking place between the sons and which a creditor 
can attach in execution of a decree against the husband’s 
assets (v). The rule that the widow succeeds to her deceased 
husband’sproperty only in default of his male issue, that is, son, 
grandson or greSt-grandson is abrogated by virtue o f se ction 3, ^ 
sub-section 1 of the Act, and she will now be entitled to the same _ 
share' as"a son (w) along with or in default of th§ male issue. 
The widow of an adopted son suing her father-in-law for parti- 
tion after he has made a second adoption is entitled to a third 
and not to a half share (x). Similarly the widow of a pre- 
deceased son and the widow of a predeceased son of a pre- 
deceased son are entiled to succeed for their respective 
shares {y). For instance a predeceased sou’s widow takes 
before a mother under the Act (z). 


The interest thus taken by the widow in the joint family 
property, as well as the interest devolving on the three female 
heirs, is under sub-section 3 the limited interest technically 
known as a Hindu Woman’s Estate. Although section 2 
provides that section 3 shall apply when a Hindu dies intestate, 
it is submitted that the provisions of sec. 3 (2) are intended 
to apply to every Hindu joint family. The Act is silent as to 
what is to happen to the interest thus taken when the heir 
in question dies but presumably it will devolve according to 
the ordinary law. (See secs. 43 and 128.) The statute was 


(u) Jadaobai v. Pu,ranmal (1044) Xag. 832 ; 
dissenting from Natarajan ChetHar v. 
PerumfU Ammal ('42) A.M. 246. 

(») Sivtihwar Prasad v. Lala Ear Narain (1944) 
23 Pat. 760, (’42) A.P. 212. 

(uf) Nand Kumari Devi y. Bulkan Devi (1944) 
23 Pat. 608. 


ix) Ckinniah Chettiar v. SivagamiAcki (1945) 
Mad. 402. 

(y) Sara<faml>al v. S. Subbarai Ayyar (1942) 
Mad. 630, 201 I.C. 152 (’40) A. M. 

212 . 

(;) Bhapvan Devi v. Jai Devi (1944) All. 401. 


S.35 



28 


HINDU LAW. 


Ss. enacted to enlarge the rights of women, or as it says to give 
better rights to them and there is no indication that, except 
for this limited purpose, the Legislature intended to interfere 
with the established law relating to succession or to a joint 
family. The provision that the widow of a member of a joint 
family is to have the same interest in the joint property as 
her deceased husband, and further the provision that she is 
entitled to claim partition, would seem to indicate that mere 
devolution of the husband’s interest would not otherwise 
affect the joint family status as such, or to confer upon the 
widow all the rights of a male coparcener other than those 
necessary for enforcing the rights expressly conferred on 
her. However, for purposes of income-tax assessment the 
widow is regarded as a member of the joint family {a). It has 
been held in Madras that a trusteeship is not “ separate 
property ” within the meaning of the Act, and therefore 
devolves only on the widow and not on a son's widow. The 
Act applies to moveable properties in foreign countries (6). 

Whether Act ultra vires . — The Hindu Women's Rights To 
Property Act of 1937 and Amending Act of 1938 do not operate 
to regulate succession to agricultural land in the Governor's 
Provinces, or to a mortgagee’s interest or a lessee’s interest (c) 
in such lands but are not ultra vires as to other lands (d). 

A mango grove is a^icultural land within the meaning 
of Sch. VII, Govt, of India Act (1935), lists 11 and III (e). 

36 . Propinquity the governing factor. -Tlynder the Mitak- 

shara, the right to inherit arises from propinquity, that is, 
proximity of relationship (f). Under the Dayabhaga, it 

(M 
(r) 


The Comi\iii>bion&r oj A,V .p. » 

Mr. M Lakshamanan ClulUur 1 1 041) Mud 
H)4. ' I 

Uniaml A''hi V. Lakshtiii Aria (1945) F 1 
t'.lt.l. ’ I 

Koiayyay Annapvrnam7nai\\}i:i)'M:\<i.7't7. | 
Htmaswaniiv. Murnyayyan (I94a) Mad. 

In re tlie Hindu women’s to property 
act of 19a7 and the Hindu women'K 
Tigbt» to property amundiuent act oi 
1938 and Jn re a •special reference under 
sec. 213 o( tlje Government ot India Act 
1035 (1041) F.C.ll. 12; AnaM Lai v. 

IltDii Mhar 17 Luck. 720, 19S 1 C 443 
42 A.O, 210. 


(«) Aarojini JJevi v. Sabrahmanuam Mad. 

Gl. 

(/) Lallubhui v. (1881) 5 lloni. liO, 

121. 7 I. A. 212, 234 ; Adit Sanman v. 
Mahabir PraHad (1921) 48 I. A 80, 05, 
6 Pat. L. J. 140, 00 I. C. 251, (’21) A. PC 
.53; Vptlachela v. Sid>ratnania (1021) 48 
I.A. 349, 359, 44 Mad. 753, 04 I. C 402. 
(’22) A. PC. 33 ; Paroi Papatal v. Mehta 
Uarilal (18Q5) 19 Bom. 631 ; Pniiu JaiI v. 

Ram (1895) 22 Cal. 339 ; Svbti 
Sinqh v, Sarafraz (1897) 19 All. 215 
ft’.B.j; 8'u6ro«wnya v. .S'nti SnbrinruDiijn 
(1894) 17 Mud. 310 ; Appandni v. 
Jiaqabali (1010) 33 Mad. 430, 444, 5 I. C 
280 ; Chimasiimiy. Jiunjn Villai (19)2) 53 
Mad. 152, 11 1.C, 885. 



MITAKSHARA SUCCESSION. 


29 


arises from spiritual efficacy, that is, the cafiacity for confer- 
ring spiritual benefit on the manes of paternal and maternal 
ancestor^ [s. 79]. But though under the Mitakshara the right to 
inherit does not arise from the right to offer oblations, the 
test to bfi applied, when a question of preference arises, is, in the 
case of sagotra sapindas, the capacity to offer oblations {g), 
but, in the case of bhinna-gotra sapindas, the “ prinfhry test ” 
is ‘‘ propinquity in blood ” (h) and, “ when the degree of blood 
relationship furnishes no certain guide,” the test is the capacity 
for conferring spiritual benefit (i). 

Different meanings of “ sapinda *’ in Ike Mitak^fiara and the Dayabhaga. — In Bniddha 
Singh V. Laltu Singh (j), their Lordships of the Privy Council sajd ; “It is now wfeU 
settled by the decisions of this Board [^iMllubhai Bappoobhoy v. Cassibai {]:) and Bam- 
Chandra's case (Z)], that under the Mitakshara the aapinda-relationship arises ‘ between 
two people through their being connected by particles of one body»’ namely^ that 
of the common an<ftstor, in other words, from community of blood in contra- 
distinction to the Dayabhaga notion of * community in the offering of religious 
oblations.’ ” 

Both the schools adopt as the starting point the text of ^fanu, “ To the nearest 
sapinda, the inheritance next belongs,” Vijnaneshwara, the author of the Mitakshara, 
who flourished towards the end of the eleventh and the beginning of the twelfth centurv, 
laid down that sapinda-relationship arose from community of blood, or, to use the fjuaint 
language of Hindu wrirers, “ community of particles of the same body.” On the other 
hand, Jimuta Vahana, the author of the Dayabhaga, who came about five centuries later 
laid down that sapinda-relationslup arose from “ community in the offering of funeral 
obJatioijs ” (m). A sapinda, according to the Mitakshara, mean.s a person connected 
by the same fjinda or particles of the same body; according to the Dayabhaga, 
it means a person connected by the same pinda or funeral cake. It may 'happen 
that, ill some instances, the same person is the preferential heir whichever test is 
applied. " 

The doctrine of spiritual benefit is e^lained in secs. 79 to 87. 


37. Gotraja sapindas and bhinna-gotra sapindas. — (1) Tbe 
Mitakshara divides sapindas or blood relations into two classes, 
namely : — 


(a) gotraja sapindas, that is, sapindas belonging to the 
same gotra or family as the deceased ; and 


(g) Bkyah Ham Singh Bhyah Ugiir Smah 
(1872) 13 M.I.A. 373, 392 ; Buddha 
Singh V. Lallu Sinqh (1915) 42 I. A. 208, 
217, 227, 228, 37 AU. 604, 613, U23, 024, 
30 I. C. 5, (’15) A.PC. 70. 

(A) Balasubramanya Pandya Tluxlaixar v. 

(1938) 05 1. A. 93 (1938) 
Mad. 559, 40 Bom. L. K. 704, 172 I. C. 
724, (’38) A. PC. 34. 

(i) Vedachela v. Subramania (1921) 48 I. A. 
349, 44 Mad. 753, 64 I. C. 402, (’22) 
A.PC. 33 ; Jotindra Nath Jioy v. Nagendra 


Nath Roy (1931) 58 I.A. 372, 59 Cal 576, 
135 I.C, 637. (’31) A.PC. 268; 

V Jlanuma Retidi (1938) Mad. 200 (’37) 
A M. 967. 

(j) (1915) 42 I.A 217, 37 All. 604, 613, 30 
I.C. 529, (’15) A.PC. 70. 

(jfc) (1880) 5 Bom. 110, 121, 7 I.A. 212, 234. 

(1) Ramchanitra v. Vinayak (1914) 41 I.A. 290, 
298. 42 CaJ. 3H4, 404, 25 I.C. 290, (’14) 
A.PC. 1. 

(m) Ibid. 


Ss. 

36,37 



30 


HINDU LAW. 


S.37 


(b) bbinna-gotra sapindas, that is, sapindas belonging 
to a different gotra or family from the deceased. 

Gotraja sapindas are all agnates, that is, persons connected 
with the deceased by an unbroken line of male descent, as 
for instance, a son’s son, a son’s son’s son, or a brother’s son. 
If challenged, the identity of gotra {n) and the continuity of 
the lineage, not broken by an adoption into another gotra (o) 
must be established. Bhinna-gotra sapindas are all cognates, 
that is, persons related to the deceased through a female such 
as a sister’s son, a brother’s daughter’s son, etc. Bhinna- 
gotra sapindas are called bandhus in the Mitakshara, and are 
commonly known by that name. 

(2) Gotraja sapindas are sub-divided into two classes, 
namely, (1) sapindas technically so called, and (2) sama- 
nodakas. 

{3) It will be seen from the above that the word “ sapinda” 
is used in the Mitakshara in two senses. In its larger 
sense it means a person having the same pinda or community 
of particles of the same body with the deceased, that is, a 
blood relation. In its narrower sense, the sapindaship ceases 
with the fifth degree on the mother’s side and the seventh degree 
on the father’s side. That is, a person is said to be the sapinda 
of another if, when he is related through his father, he is not 
more than seven degrees frOm the oommon ancestor, and when 
related through the mother not more than five degrees from 
the common ancestor (p). In this sense, as there are no 
females in the pedigree of a gotraja sapinda, the sapindas include 
blood relations to the seventh degree only reckoned from and 
inclusive of the deceased as defined in sec. 39. In the following 
sections of this chapter the word “ sapinda” is used in its 
narrower sense. 


(n) JadMnaih Kuar v. Btsheshpr Bakxh Singh 

(1932) 59 I. A. 173, 38 C.W.N. 1073, 130 
I.C. 747, (’32) A.PC. 142. 

(o) Lai Uari Bar Pratap Balah Singh v. Baja 

Bairang Bahadur Singh (1933) 9 Luck. 


121, 144 I.C. 529, {-33) A.O. 197. 

(jj) Mitakshara, chap. Ill, v. 53, quoted In 
Ramchandra v. Vinayak (1914) 41 I.A. 
290, 42 Cal. 384, 408, 25 I.C. 290, (’14) 
A. PC. 1. 



MITAKSHARA SUCCESSION. 


31 


38. The three classes of heirs. — (J) There are three Ss. 

qo o 

classes of heirs recognized by the Mitakshara, namely : — ’ . 

(a^ Gotraja sapindas ; 

(b) samanodakas ; and 

(c) bandhus. 

(2) The first class succeeds before the second, and the 
second succeeds before the third. 

39. Gotraja Sapindas. — The gotraja sapindas of a person, 
according to the Mitakshara (g/), are — 

(i) hii* 6 male descendants in the male line ; " ' 

that is, his son, son’s son, son's son’s son, etc., being Sj to Sg in the 
table given on p. 34 below. 

(n) his 6 male ascendants in the male line, the ■wives 
of the first three of them, and probably also of the 
next three ; 

that is, his father, father's father, father's father’s father, etc., 
being to F^ in the table and their wi^es, that is, to Mg 

being the mother, father's mother, father's father's mother, etc. 
e 

•y(in} the 6 male descendants in the collateral male fine 
of each of his six malh ascendants ; 


(1) that is, Xj to Xg in the line of Ej, being his brother, 
brother’s son, brother’s son’s son, etc. ; 

(2) Xj to Xg in the line of F,, being his paternal uncle, paternal 
uncle's son, etc.; 

(3) Xj to Xginthe line of Eg, being his paternal grand-uncle, paternal 
grand-uncle’s son, etc. ; 

(4) Xg to Xg in the line of Eg ; 

(5) Xj to Xg in the line of Ej ; and 

(6) Xg to Xg in the line of Eg. 


Cc) Sarkar'8 Hindu Law, 7th ed.,p. 97; Sarvadhi- | 
kari's "Principles of Hindu Law of Inheri- 1 


tance,” 2ud ed., p. 503 ; Bhyah Sam v. 
Bhyah Uyur (1870) 13 M.I.A. 373, 394. 



32 


HINDU LAW. 


Ss. 

39-41 


(w) his wife, daughter, and daughter’s son. 

Tho sapindaa aro 57 in nnmbor as shown bolow ; — 


s, to Sg 

(i 

to Je their « ives J/, to J/g 

. . 12 

to Xg in each of the six lines from J’, to . . 

.. 30 - 

W ife, daughter and daughter’s son 

3 

• 

57 


It will be seen that the sapinda relationship extends to seven degrees reckoned 
from and inclusU'e of the deceased. Ibis being the Hindu mode of eonnbing degrees. It 
is six degrees, if you exclude the deceased. The wife becomes a sapinda of the husband 
on marriage. The daughter's son is not a gotraja sapinda : he is a bandhu for lie is 
related to the deceased through a female. For the purposes of succession, however, 
he is ranked with gotraja sapindas. 

A sapinda; according to the Mitakshara, means a person connected with the same 
pinda or body. See sec. 36 above. 

In the case of the sons of a prostitute thete can be no 
gotraja sapinda relationship between them or their agnate male 
descendants as the father is unknown (r). 

40. Samanodakas. — The sapinda relationship, as stated 
above, extends to seven degrees reckoned from and inclusive 
of the deceased. The samanodakas of a person include 
all his agnates from the 8th to the 14tli degree (s). 

The .samxnodakas are shown in the table given on p. 34 in thick black type. They 
are 147 in number counting up to the 14th degree only ; they are : — 

S; to Sjjj in the descending line .. .. .. .. .. .. .. 7 

F 7 to i'j 2 hi the ascending line .. .. .. .. .. .. .. 7 , 

X- to Xj 2 in each ot six collateral lines from F^io . . . . . . 7 x 6 -- 42 

to in each of the 7 collateral from F-j to . , . . 13 X 7 = bl 

147 


Samanodakii'i are those male relations of a Hindu to whom he offers oblations of 
water while performing the Sradha ceremony. See sec. 80. 


41. Table of Gotraja sapindas and samanodakas. — The table 
given onp. 34 is a table of Gotraja sapindas and samanodakas {t). 


The thick black lines show where the sapinda relationship 
ends, and the sainanodaka relationship begins. 


(r) Krishna Mii'latiur v Marimut?m Miidaliar 

d; Ors. (1940) Mud. 109 {'39) A.M 802. 
(1939) 2 ai.L.J. 423, 13 I.K. 298. 

(s) Ahmramy. Bajirao (1935) 62I.A. 139. 155 1. 

C. 330. (’35) A. PC 57, approviug Karaini 
V. Chmdi (1887) 0 All 407 : Hama Row 
V. Kulliya (1917; 40 Mad 654, 659, 34 


I.C. 294, (’17) A.M. 872 aad disapproting 
Dp.rhore v. Amn7ram(1885) 10 Bom. 372, 
Ram Baran v. Kamla Varsad (1910) 32 
All. 504, 6 I.C. 008. 

(0 This table la aa eiilarjremcnt of the table 
Uiveu in Sarvadhikari’a “ Principles of the 
Hindu Law of liiheritanco,” 2nd cd., 
p. 527. 



MITAKSHARA SUCCESSION. 


33 


The samanodakas are shown in thick black type ; the rest 
are sapindas. 

]V is the widow of the deceased owner, d is his daughter 
and d’s son is his daughter’s son. 

Si to *Si3 are the son, the son’s son, the son’s son’s son, 
etc., of the deceased. 

Fi to Fis are his father, father’s father, father’s father’s 
father, etc. 

Ml to Mq are his mother, father’s mother, father’s father’s 
mother, etc. 

Xi to Xi3 in the line of Fi are his brother, brother’s son, 
brother’s son’s son, etc. 

Xj to Xi3 in the line of F2 are his paternal uncle, paternal 
uncle’s son, paternal uncle’s son’s son, etc. 

X, to Xi3 in the line of F3 are his paternal grand-uncle, 
paternal grand-uncle’s son, etc., and so on in the remaining 
lines from F^ to F13. 

The table does not include female heirs recognised in the 
Bombay Presidency, 

Fi to Fi3 is the ascending line : Si to *§13 is the descend- 
ing line ; Xj to x^g are the thirteen collateral lines. 

42 . Succession in the Bombay Presidency. — The rules 
of inheritance in force in the Bombay Presidency differ in 
some respects from those in force in the Benares, Mithila and 
Madras schools. Again in those parts of the Bombay Presi- 
dency where the Mayukha is the prevailing authority, that is, 
the island of Bombay, Gujarat and the North Konkan, the 
rules of inheritance are in some respects different from those 
prevailing in other parts of that Presidency. The order of 
succession in the Bombay Presidency is given separately in 
Chapter VI (secs. 71 - 77 ). 



34 


HINDU LAW, 


Table of Saplndus and Samanodakas according to the Mltakshara Law. 


Fjj. .Xj to Xi3 

^ . .Xi to Xi3 

Fii . .X] to Xi3 

I 

Fio- -Xi to Xi3 
'9 . .Xi to X13 
1 'g . .Xi to Xl3 
't . Xi to Xl3 

Mg = -f'e — *1 — *2- X3 — rg-xg-xg X? to X^ 

•^s ~ *2 Xj X^ — Xj — Xg X7 to Xl3 

^4= Fi-Xi-X2-X,-X,-Xg-Xg ^XrtoXu 

•^4 = F3 — Zj — Xj, — — Xg X7 to Xl3 

J/^ = Fv — Z, — X.^ — - Xg — Xg — Xg X7 to Xu 

i/, = ^X 7 toXu 


w = O^SEU. 

! ! 

i S. 

i i 

d's son S2 


iV' ote ,' — For explanation of the 
table, see sec. 41. 


t 

S7 to S13 



MITAKSHARA SUCCESSION. 


36 


43. Order of succession among sapindas. — The sapindas s. 43 
succeed in the following order 

1—3. Son, grandson (son’s son), and great-grandson (son's son’s son), 
and( 9 fter 14th April 1937) widow, predeceased son’s widow, and predeceased 
son’s predeceased son’s widow. — A eon, a grandson whose father is dead, and a 
great-grandson whose father and grandfather are both dead, succeed simultane‘ 
ously as a single heir to the separate or self-acquired property of fhe deceased 
with rights of survivorship (it). See s. 29, s. 31, ill. (a), and s. 32. 

After 14th April 1937, a widow takes the same share as a son. The widow of a 
predeceased son inherits in like manner as a son if there is no son surviving of 
such predeceased son ; and in like manner as a son’s son, if there is surviving a 
son or son's son of such predeceased son. The same rule applies mutaiis mutandis 
to the widow of a predeceased son of a predeceased son. * 

(1) Take per stirpes. — The son, grandson and great-grandson take per stirpes 

and not per capita. See s. 29 and illustration thereto. 

(2) Son born%fter partition. — Where there has been a partition between a father 

and his sons, and a eon is subsequently born to him, such son takes not 
only the share of the father in the joint property obtained by him on parti- 
tion, but the whole of the property acquired by the father before or after 
partition to the exclusion of the divided sons (v). A and his two sons, 

B and (7, constitute together a joint family. B and C separate from A. 

After the division a son D is born to A. A and D remain joint. A then 
dies leaving D. D is entitled not only to A’s separated share of the joint 
property, but to the whole of A's self-acquired property. See s. 310. 

(3) Divided and undivided so7is. — Where there are sons by different wives, it 

often happens that the sons by one wife take their share of the joint pro- 
perty from the father and separate from him, and the father continues joint 
with the sons by his other wife. Suppose now that the father dies leaving 
self-acquired property, some acquired before and some after partition. 

Who is entitled to the property ? According to the Allahabad, Bombay 
and Madras ruling the undivided sons and their branches succeed as 
heirs to the whole of such property to the exclusion of the divided sons and 
their branches. According to the Oudh rulings, they all inherit together, 
the reason given being that partition does not destroy rights of inheritance 
to the self-acquired property of a separated member (x). A and his two sons 
j^and C constitute a joint family. B separates from A, and receives bis 
share of the joint property. A then dies leaving self-acquired property. 
BothBandC? survive A. According to the Bombay and Madras decisions, 

G alone is entitled to such property. According to the Oudh decisions, 

B and C inherit the property in equal shares. See s. 341. 

(u) Jfaru(toyi V. (1907) 30 Mad. 348 ; 765, (’32) A. M. 361, Ganesh Prasad s . 

Gangadkar v. /ftraAim (1923) 47 Bom. 55G, Hazari Lai (1942) All. 759, 202 I. C. 350, 

72 I. C. 307, (’23) A. B. 265. (’42) A. A. 201. 

(v) Nawal Singh v. Bhagwan Singh (1882) 4 All. Badri Nath v. Hardeo (1930) 5 Luck. 649, 

427, 429. 123 I.C. 861, ('30) A. 0. 77. [Tlie case of 

(tti) Fakirappa v. Yellappa. (1898) 22 Bom. 101 ; Kunwar Bahadur v.- Madha Prasad (1918) 

Nana\. Ram'iehandra (1909) 32 Mad. 377, 17 All. L. J. 151, 49 T. C. 620, (’19) A. A. 

2 r.C. 519; Vairavan v. Srinivasachariar 223, relied upon in Barfrt iV^aM’s case, does 

(3921) 44 Mad. 499, 503-504, 62 I.C. 944, not support the decision in that case]; 

(’21) A.M. 108 [F B ] ; Narasimhanv. Ambikav. Jamuna Prasad 17 Luck. 

Narasimhan (1932) 55 Mad. 856, 137 I. C. 72. 



36 


HINDU LAW. 


S.43 


(4) Illegitimate soM . — The illcgitiiBate sons of a Brahman, Kshatriya, or Vaisya 
are entitled to maintenance, and not to any share of the inheritance (y). 
See Mitakshara, eh. I, s. 12, v. 3. 

The illegitimate son of a Sudra, however, is entitled to a share of the inheritance 
proiided (1) he is the son (pulra) of a diisi, that is, a Hindu [zj concubine 
in the continuous and exclusive keeping of his father and (2) he ij not the 
fruit of an adulterous or moratuqus intercourse (o). A Brahmin mistress 
•of a Sudra does not become a Sudra herself and their son is not a 
Dasiputra (4). It ie not necessary to constitute a woman a dnsi that 
she should not have been a married woman (c). She may be a widow 
when the illicit connection begins (d), or she may even be a married woman 
when such connection begins, provided that in the latter case the connec- 
tion has ceased to be adulterous when the son is conceived, as where the 
husband dies before conception (e). The condition that the connection 
should not be adulterous or incestuous is not to be found in the texts; it 
seems to have been imposed on grounds of general morality!/). Xorisit 
necessary that a marriage could have taken place between the boy s father 
and his mother (j). He is not. however, entitled to full rights of inherit- 
ance. ^he text of the Mitakshara bearing on the autijcct is as follows ; — 

“ The son begotten by a Sudra on a female slave obtains a share by the 
father's choice or at his pleasure. But after [the demhe of] the 
father, if there be sons of a wedded wife, let the.se brothers allow the 
son of the female slave to participate Jor half a share ; that is, let them 
give him half [as much as is the amount of one brother's] allotment 
Mitakshara, chap. I, sec. 12, verse 2. 


The above text refers to the property of a separated householder (4). 

In Kamulammal v. Visvanathasicami (i), the above test was interpreted by the 
Privy Council to mean that an illegitimate son takes one-half of what he 
would have taken if he were legitimate, that is to say, the illegitimate son 
takes one-fourth (1/2 X 1/2), and the legitimate son takc.s three-fourths. 
If he dies leaving one legitimate son and 0 illegitimate sons, then 


(S) Rothan Singh v. BuljcanI Singh (1900) 22 
AH. 191. 27 T..t. r,l ; Cbuolurj/a v ^hub 
Purhulad (1857) 7 M.T. A. 18 ; Uiralal Lai- 
mandat v, itrghraj BhUchand (1938) Bom. 
779, ('38) A. B. 433. 


(s) Lingappa v. Emdamn (1904) 27 Med. 13 
[a Cliristlau womau Is not a daril ; Sitaram 
V. Canpot (1923) 23 Bom. L. B. 429, 73 
1. C. 412, (’23) A. B. 384 (a Mahomedan 
woman is not a daittS; Mahahir Pmmd 
T. Raj Bahadur Singh (1943) 18 Luck. 
5S.3 (Tliakur woman). 


Rahi y. Sovind (1870) 1 Bora. 97 ; Sadu \ 
Rnira (1880) 4 Bom. 37 ; (longatnn x 
Bandu (1918) 40 Bora. 300 32 I C 

9Sa. (-16) A. B. 283, Ram Kali x 
Jamina (1908) 30 All. 508; Rajan 
Sath Das y. Mtai Chandra Deg (1921 
48 Cal, 043, 03 1_ y 50. ('21) A.C. 82 
-Varain x. Rahhc 
* ■ ^(rpal T. Sill-urmof 
1/8.2) 19 Cal. 91. and Ram Sarain x 
Tekrhmd (1901) 28 Cal. 194. See B,i 
.X a^ntwf V. Bai Monghibai (1926) 53 I J 
153. .'»0 BAitn. 604. 5*6 I C M (*26) A P( 
73 {on appeal from (1323) 47 Boin.’lO; 
6- I.C. 201, ( 23) A. B. 1301, ThtlUpglt 
mate son of a Sudra who is the offsprlc 


I 


t 

j 

I 


of an adulterous or incestuous interronr-e 
Is entitled to maintenance only (s. .'*51]. 
(6) liamchondra Doddappo v. Unnurn Saxk 
Vodnatb (1D36) 60 Bom. 7x3. 37 liofn. 

L. K. 920, 160 I. C. 99. (’30) A 11. 1 , 

(c) (1876) 1 Bom. 97, ft^ipra , Subravvinin 

KalhnaieH (1918) 41 ilad. 44. 47. 42 I C. 
5 d 0, (’18) A. il. 1346. 

{d) (1916) 40 Bom. 36V<J2 !. C. 086 . (’16) A. 
B, 283, -* 

(e) Tukaram v. Dinkar (1931) 33 L It. 

2R9, 131 I. C. 883, (’31) A. B. 2J1 , .1// 

Baif/af Kuar v. hi^hvndeo Mnnh ( I'.Mti) 10 
Bat. 382, 189 I. C. 88.3. (’40) A. 1' :U'> ^ 
{/) Soundarorajarr y. Anniachuinm (lOli’i) .iO 
Mad. 136. 151, 33 I.C. 858, (‘18) A 
1170 [F. B.l. 

Iff) (1016) 39 Mad. 130, 33 I. C. 85S, Cl**) A. 

M, 1170 {K. B.), supra , l\0)an\ 

V. A'Uai Chandra Dey (1921) 48 Cal 64.C 
63 I. C. 50, ('22) A. C. 820 {F. li ! 

(/i) V. Kandn^i (1885) 8 Mnd. 457, 501. 

(*) (1923) 50 I. A. 32, 40 Mad. 167, 71 I. C. 
643. (’23) A. PC. 8 di^pprovmg . Kesaree 
V. Suviardhan (1873) 5 X. F. 9 . 
CheUnmtnal v. llanyanathtini (1911) 34 
Mad, 277, 12 I. C. 247 ; (1916) 40 Bom. 
369. 32 I. C 0x86. ri6) A. B. 283. eupra. 



MITAKSHARA SUCCESSION. 


37 


if the 6 illegitimate sons were legitimate, they would each take 1/7; S. 43 
being illegitimate, each of them will take 1/2 of 1/7, that is, 1/14 and 
the six together will take 3/7, and the remaining 4/7 will go to the 
legitimate son (j). 

Where there is no legitimate son, but a daughter or daughter’s son, the illegit- 
imate son, takes one-half of the whole estate, and the other half goes to 
the daughter, or to the daughter’s son, as the case may be {k). According 
to the Privy Council decision in KamulammaVa case referrec? to above, 
the half share which an illegitimate son takes is a half of that which 
he would have taken had he been legitimate. Applying that test, 
it is clear that had the illegitimate son been legitimate, he would have 
• taken the whole estate to the exclusion of the daughter ; being illegitimate, 
he takes one-half of the whole, and the daughter or daughter’s son, 
as the case may be, takes the other half. In such a case, if the daughter 
(who has taken a half share of the estate) dies, the half share descends 
solely to the daughter’s son and the illegitimate son is not entitled 
to any portion thereof (Z). If there be no widow, daughter, or 
daughter’s son, the illegitimate son takes the whole estate (m). An 
adopted son stands on the same footing as a legitimate son (n). 

The share allotted to the illegitimate son under the Mitakshara is not in lieu 
of maintenance ; it is in recognition of his status as a son (o). 

The legitimate son and the illegitimate son inherit their father's property as 
coparce7iers with a right of survivorship. Thus if a Sudra dies leaving a 
legitimate son A, and an illegitimate son B, and A dies before partition 
without leaving male issue, B will take A’s share by survivorship to the 
exclusion of A’s daughter, mother or other heir (p). See sec. 312. 

The right of an illegitimate son of a Sudra to inherit to his father is not merely 
aptersonal right : it passes on his death to his legitimate issue. Thus if a 
Sudra A has a legitimate son B and an illegitimate son C and C predeceases 
A, leaving a legitimate son D, then, on A’s death, B will take a moiety of 
the share of B, that is, B will take 3/4, and D will take 1/4, that being the 
share of his father 0. It is an open question whether Z> would inherit at 
all to A, if he were the ilfegitimateg son of G {q). 

Where, on partition between a legitimate son and an illegitimate son, property is 
allotted to the widow, the illegitimate son can claim, on the widow’s death, 
a share in the property allotted to her, as it stands on the same footing as 
property inherited from her husband (rj. 

The illegitimate son of a Sudra inherits only to his father ; he has no claim to 
inherit to collaterals. Thus if a Sudra dies leaving a legitimate son A and an 
illegitimate son B, they will both inherit their father’s property as copar- 


(j) Maharaja of Kolhapur v, Sunduram (1925) 

48 Mad. 1, 93 I.C. 705, (25) A. M. 497. 

(k) Shesqiri v. Girewa (1890) 14 Bom. 282 ; 

Meenakshi v. (1910) 33 Mad. 

226, 4 I. C. 299; Annayyan v. Chinnan 
(1910) 33 Mad. 366, 5 I. C. 84. 

U) Karuppayee v. Itamaswami (1032) 55 Mad. 
856, 137 I.C. 045, ('32) A.M. 440. - 

(m) Sarasvati v. Manna (1879) 2 All. 134, 

Mitak^^hara, chap. 1, sec. 12, para. 1. 

(n) Maharaja of Kolhapur v. Sundaram (1925) 

48 Mad. 1, 93 I. C. 705, (’25) A.M. 497. 


(d) Velluiyappa Chetty v. Natarajan (1931) 
55 Mad. 1, 58 I.A. 402, 134 I.C. 1084, 
(’31) A, PC. 294. 

(j>) Raja J<^endTa v. Nityanuiid (1891) 18 Cal. 
151, 17 I.A. 128, [oa app, from (1886) 
11 Cal. 702), approving Sadu v. Baiza 
(1680) 4 Bom. 37. 

{q) Ramalinga v. Paradai (1902) 25 Mad. 519, 

524, 

(r) Bkagioantrao v. Punjaram (1038) Kag. 255, 
174 I. C. 201, (’38) A. N. 1. 



38 


HINDU LAW. 


S.43 


ceners. If they divide the property, A will take 3/4 and B will take 1/4. 
If A dies n/<er partition, hia share will pass to his own heirs, 6w( in no case lo 
B, B not being amongst hie heirs. B can inherit to his father alone, and nnt 
to his father’s legitimate sons, nor his father’s brothers nor any other 
collaterals (s). 1 f A dies while he is joint with B without leaving male issue 
his share would go to B by survivorship. But A s separate property would 
pass to his own heirs, and not in any case to B. On the same principle, if 
a Sudra dies leaving an illegitimate son of his father and a half -brother, the 
half-brother is entitled to succeed, the illegitimate son being excluded 
from all collateral succession (t). And just as an illegitimate son is not 
entitled to inherit to collaterals, so a collateral is not entitled to inherit 
to him. Thus if a Sudra dies leaving a legitimate son .4 and an illcgiti- 
mate son JS, and A dies leaving a legitimate son C, and B dies with- 
out leaving any relations, C, who is a collateral, is not entitled to 
succeed to B's property (v). 

The son of a Zamindar born of the katar form of marriage among the Tanwars or 
Kanwars (Sudra) is illegitimate and is not entitled to the Zamindary in 
preference to the Zamindar’s cousin (v). The only question raised before 
the Judicial Committee was as to the validity, of the marriage. The 
other point was conceded obviously because the Zaraindari was 
impartible and the cousin took by survivorship. (See s. 587.) 

The illegitimate son is not entitled to succeed to the stridhan of his father's 
wife (w). 


There can be no coparcenary between a Sudra father and his illegitimate sons. 
But it has been held by the High Court of Bombay that on the father s 
death they hold the property inherited by them from him as coparceners 
and none of them can dispose of his interest in it by will (x). 


(5) 


y 


Son born of arinloma marrutge . — Under fche Hindu law as administered in 
the Bombay Presidency, the marriage of a Brahman male with a Sudra, 
woman is an anuloma marriage and is valid. A son born of such a marriage 
is legitimate, but he is entitled only to a one-tenth share in the estate of 
his father. As regards the e.state of his uncle also, he is entitled not to the 
whole of it, but only to a one-t-enth share in it [y). 


4. Widow. 


(1) Widow's estate . — The widow takes only a limited interest called the widow's 
estate in the estate of her husband [s. 17b]. On her death the estate goes 
not to her heirs, but to the nest heirs of her husband, technically called 
reversioners {z) [ss. 168, 170]. She is entitled only to the income of the 
property inherited by her. She has no power to dispose of the corjnts of the 
property except in certain cases [ss. 178-180]. She may, however, alienate 
her life-interest in the e.state. 


(») Shome Shankar v, Rajesar (1899) 21 All. 99 ; 
Subramama v. liathnavelu (1918) 41 Mad 
44, 42 I.C. 506, ('18) A. M. 1346 [F, B.l; 
A-yi-nvaryananclaji v. Siraji (1926) 49 
ALad. 110, 92 I. 0. 928, (’20) A. M. 84 ; 
Ttaj Fateh Singh v, Baldeo Smgh (1928) 3 
Luck 416, 109 I. C. 310, (’28) A. O. 233, 
(0 Dharma v. Sakharam (1920) 44 Bom. 18r> 
55 I. C. 306, (’20) A. B. 205. 
iu) ZivTH V, Bomtyn (1922) 46 Bom. 424, 64 I C 
976, (*22) A. B. 176. ' * 

(v) Ram Saran Singh v MaJiabir Sewak Singh 


(1934) 61 I. A. 106, 147 I. C. 607, (’34) 
A. PC. 74. 

(w) Ayvfwaryanandaji v. Siraji (1926) 49 Mad. 

116, 92 1. C. 928, {’26) A. M. 84. 

(a:) SAtimw v. Babu Aba (1928) 52 Bom. 300. 110 
I.C. 116, (’28) A.B. 158. See Parkirviawmy 
V. Doratawtny (1931) 9 Bane. 260, 
271, 272, 132 I.C. 817, (’31) A.ll. 210. 
(y) Natha v. JHehta Chhotalal (1931) 55 Bom. 1, 
130 I.C. 17. (’31) A.B. 69. 

(?) fih\igicai\deen v. Myna Baee (1867) H M. 
I.A. 487. 



MITAKSHABA SUCCESSION. 


39 


(2) Unchaatity.— An unchaste widow is not entitled to inherit to her husband. S, 43 

But once the husband's estate has vested in her (which can only happen if 
she was chaste at the time of her husband's death), it will not be divested 
by unohastity subsequent to her husband's death (o). 

f* 

(3) tRe-marriage . — The re-marriage of a widow, though now legalized by the Hindu 

Widow’s Re-marriage Act, 1856, divests the estate inherited by her from 
her deceased husband. By her second marriage she forfeits tfle interests 
taken by her in her husband’s estate, and it passes to the next heirs of her 
husband as if she were dead (s. 2 of the Act). The reason is that a widow 
succeeds as the surviving half of her husband, and she ceases to be so on 
re-marriage. But a widow does not by re-marriage lose her right to succeed 
to the estate of her son (6) or her daughter (c), by her first husband. 

Does a Hindu widow who has ceased to be a Hindu before her re-marriage, c.^., 
by conversion to Mahoraedanism, forfeit her rights to her husband’s 
property ? Yes, according to the Calcutta (d), Madras (e)> Bombay (/), 
and Patna (g) decisions. No, according to the Allahabad decisions (fe). 

There is a conflififc ^f opinion as to whether a widow who is entitled to re- marry 
by the custom of ike caste to which she belongs, forfeits her interest in her 
husband’s estate by re-marriage. It has been held by the High Court of 
Allahabad and the Chief Court of Oudh, that she does not ; by the other 
High Courts, that she does. The Allahabad High Court has again consider- 
ed the matter in a Full Bench and held that she does not, unless it is proved 
that there is also a custom of such forfeiture on such a contingency (i). 

See the cases cited in s. 563 below. The mere fact that there is a practice 
of re-marriage after 1856 would not necessarily be indicative of any ancient 
custom existing before the Act and such a custom has to be proved by the 
party relying on it < j). 

(4) Tioo or more widows . — Two or more widows succeeding as co-heirs to the estate 

of their deceased husband take as joint tenants with rights of survivorship 
and equal beneficial enjoyment. Thus is a Hindu dies leaving two widows 
A and they are entitled as between themselves to an equal share of the 
income, and on the death of either of them, the other is entitled to the whole 
of the income by survivorship. Though co- widows take as joint tenants 
no one of them has a right to enforce an adsoliRe partiftwnyTtHe e’sfa^agwnst 
the fliers so as to destroy their right of survivorship. But they are entitled 
to obtain a partition of separate portions of the property so that each may, 
enjoy her equal share of the income accruing therefrom, and the Court may, 
at suit of any one of them pass a decree for separate possessionand enjoyment. 

Each can deal as she pleases with her own life-intereai, but she cannot 
alienate any part of the corpus of the estate by gift or will so as to prejudice 
the rights of the survivor or a future reversioner. If they act together 


(a) Jloniratn v. Ken KoliUtni (1880) o Cal. 
776, 7 J.A. 115; Sellam v. Chinnarntnal 
(1901) 24 B(Iad. 441 ; Qangadhar v. Yellu 
(1912) 36 Bom. 138, 12 T.C. 714. 

(&) Akora Suth v. Boreani (1869) 2 Beng. L.B. 
A.C. 199 ; Gharmr Haru v. Kashi (1902) 
26 Borrx. 388 ; Basapfa v, Rayava (1905) 
29 Bom. 91 [F.B.] ; Lak^ihmana v. Siva 
(1905) 28 Mad. 425 ; Knnilan v. Secretary 
ofState(lQ26) 7 Lah. 543, 96 I.C. 865, (’26) 
A.L. 037. 

(c) Bhiku V. KesJviv (1924) 26 Bom. L.R. 235, 

80 I.C. 512. ('24) A.B. 360. 

(d) Matunyini v. Ram Rutton (1802) 19 Cal. 289 


ih\ B.l 

(tf) ViUa V. Chatako7idu (1918) 41 Mad. 1078. 

48 I.C. 60, ('19) A.M. 354 t.F.B.l. 

(/) Ragkunath Shanker v. Laxmi Bai (1935) 
59 Bom. 417 ; 37 Bom. L. R. 150, 157 
I. C. 658, (’35) A. B. 298. 

(<?) Jilussammat Suraj v. Attar (1922) 1 Pat, 
706, 67 I.C. 550, (’22) A.P. 378. 

(A) Abdul Aziz v. Nirma (1913) 35 All. 466, 20 
I.C. 335. 

(i) BAo/a Umar v. Mt. KausiUa (1933) 55 All. 

24, 140 I.C, 031, ('32) A.A. 617. 

(i) Bhola Uma v. KansUla (1930) 58 All. 1034, 
169 I. C 504, (’37) A. A. 230. 



40 


HINDU LAW. 


S.43 


they can burden the reversion with any debts contracted owing to legal 
necessity but one of them acting without the authority of the other, cannot 
prejudice the right of survivorship by burdening or alienating any part of 
the estate. The mere fact of partition between the two, while it gives each 
a right to the fruits of the separate estate assigned to her, docs not imply 
a right to prejudice the claim of the survivor to enjoy the full fruits of the 
t property during her lifetime (k)- But the right of survivorship may be 
relinquished by agreement between the widow. Such an agreement may- 
be effected orally and without a registered instrument (Z). See s. 181 (C). 

Where a Hindu dies leaving only one widow, she can alienate her life-interest in 
the property inherited by her from her husband, but she cannot alienate 
the corpus of the property except for legal necessity. An alienation of the 
corpus except for legal necessity docs not bind the next heirs of her husband 
who succeed to his estate after the widow’s death. Thus if a Hindu dies 
leaving a widow and a brother, and the widow sells or mortgages the corpus 
of the estate without legal necessity, the sale or mortgage binds only her 
life-interest. On her death, her husband’s brother would succeed to the 
estate as his heir, and he would not be bound by tlie sale or mortgage, the 
same having been made without legal necessity (ss. 181-181B, 185). 

Where a Hindu dies leaving two or more widows, and they are in joint possession 
of the estate, any one of them may alienate her undivided interest in her 
husband’s property. If any one of the widows is in possession of a scixi-rufc 
portion of the property whether it be by mutual agreement between them 
or under a decree of the Court, she may alienate her share of the income 
which is derived from that portion. But in either case the alienation cannot 
take effect or have validity beyond her lifetime. It is good only for her life, 
and on her death her interest in the property goes to the co-widow by 
survivorship. She cannot alienate her interest so as to defeat the right of 
survivorship of the co- widow. That can only be done with the consent of the 
co-widow (m). 

Two or more widows cannot by any agreement between them aflect the rights 
of the ultimate reversioners (n). 

44. Predeceased son's widow, widow of predeceased son of predeceased 
son— 

(See S. 35. supra,') 

5. Daughter.— 


(1) Priority among daughters.— Vonghtera do not inherit until all the widows are 


dead. As between daughters, the inheritance goes, drst, to the unmarried 
daughters (o),next, to daughters who are married and "unprovided for,” that 

(i) Y. Myna Bare (imT) 11 H. i (m) Bhuguuniren 


d/iaimni (1877) 1 Mad. 290, 4 I.A. 212, 
lollowcd in CAAiWar v. Gaura (1912) 34 
All. 189, ]3 I.C. 320, MU. Sundnr v. 
Parbali ^889) 12 All. 51, 16 I.A. 186; 
Gauri yatk Kakaji v. Gaya Kuur (1928) 
55 I.A. 389, 111 I.C. 485. (’28) A PC. 
251 \AppaUmiri\. Kannami/w (1926)90 1. 
C, 861, (’26) A.M. 6 ; jl/f, Gaya I}ev% v 
Mt. Tulsha Dell (1935) 10 Luck. 587 1.54 
I. C. 125, {‘35) A. O. 296. See also 
Jainarayan v. Mm (1933) 12 Pat. 778 
146 I. C. 322, ('33) A, P. 464; Dulhin 
Parbali Kuer y. .BaijnaJA Prasad n935i 
14 Pat. 518. 

(2) Lutchumammal v. Gangammal (lOll) 34 
Mad. 72, 7 I. C. 858. 


i.A. 48/ ; iiari Aarayan v. V itai 
3l Bom. 560 ; liamakkal v. liavwsafni 
(1899) 22 Mad. 522; Janoki Salk y. 
^^othuranatk (1883) 9 Cal. 580 , Diirga 
Dat V. GUa (1911) 33 All. 443, 449, 9 I.C’. 
408 ; ifandi v. &'arup Lai (1917) 39 All. 
*63, 40 I.C. 71 (’17) A. A. 170. 

(n) Sri Gajapati v. Puaajiaii (1893) 16 Mad. 1, 19 
I.A. 184 ; Mahadevappa v. Jiasagawada 
(1904) 29 Bom. 346; Taciaii v. iCotijiaWi 
(1903) 26 Mad. 334. See also Subbammal 
■v. Avndaxyativiml (1907) 30 ilad. 8. 

(0) Jamnabni v. Kkimjx (1890) 14 Bom. 1, 13 ; 
Qovind V. Pam Adhar (1933) 8 Luck. 182, 
140 I.C. 556, (’33) A.O. 31 ; Bayava v. 
Panaiaia (1933) 3.> Bom. L.R, 118, 144 
I.C. 442, (’33) A.B. 126. 



MITAKSHARA SUCCESSION. 


41 


is, indigent, and lastly, to daughters who are married and are “ enriched,” 
that is, possessed of means {p). A married daughter may be a widow (j). 
No member of the second class can inherit while any member of the first 
class is in existence, and no member of the third class can inherit while any 

member of the first or the second class is in existence. 

» 

(2) ^Survivorship . — Two or more daughters of a class take the estate jointly as in 

the case of widows, with rights of survivorship (r). Any one dai^hter may 
alienate her life-interest in the property, hut not so as to affect the rights 
of survivorship of the other daughters {s). And, like widows, daughters 
may enter into any agreement regarding their respective rights in their 
father’s estate, provided such agreement does not prejudice the rights of 
reversioners {t). They may divide the estate merely with a view to 
convenient enjoyment, retaining the right of the survivor to take the whole 
on the death of one of them, or they may agree that the right of 
survivorship should be extinguished as between themselves {u). The 
agreement may be effected orally and without a registered writing {v). As to 
Bombay Presidency, see note (4) below. 

(3) Limited esto ^. — The daughter takes a limited interest in the estate of her 

father corresponding to the widow’s estate. On her death, the estate passes 
not to her heirs, but to the next heirs of her father (to) [see s. 169]. The 
next heirs of the father are called reversioners. As to Bombay ’Presi- 
dency, see note (4) below. 


(4) In the Bombay Presidency . — Rules (2) and (3) do not apply in the Bombay 
Presidency [see s. 72, no. 5]. A has two daughters B and C. B has 
a daughter/). On A’s death, his estate will go to Band O', In places other 
than the Bombay Presidency, they each take a “ woman’s estate ” with 
rights of survivorship. Therefore, on B'a death, her interest in the estate 
will go, not to her daughter /), but to her sister C by survivorship. In the 
Bombay Presidency, however, it is different. There on .4*8 death B and C 
will each take an absolute interest in a moiety of the estate so that on B’s 
death, her moiety will go to her heir D, and on C'b death, her moiety 
will go to her own heirs. 


(5) XJnchastily . — Unchastity of a daughtey is no ground for exclusion from 
inheritance {x), except that in Bombay, where there is an unmarried daugh- 
ter who is a prostitute aud a married daughter who is chaste, the latter 
succeeds in preference to the former (y). It may here be observed that 
under the ln.w. a widow is the only female who is excluded from 

inheritance by reason of unchastity (c). 


(p) MtDiki V. Kuntlan 47 All. 403, 87 I.C. 

121, ('25) A. A. 375 ; I'otawa v, Basawa 
(1899) 23 T3uin, 229 ; Aiulh Kunuiri 
Chandra Dai (1879) 2 All. 501 ; Danno v. 
Darbo (1882) 4 AH. 243. 

(q) Bajrani v. Gomati (1928) 7 Pat. 820, 111 I.C. 

673, (’28) A.P. 406. 

(r) Aumiriolall v. llajoneekani (1875) 2 I. A. 

113, 126, 15 Bciig. L. E. 10, 24 ; CbJiattar 
Singh V. Uuknm Kumvar (1936) 58 All 
391 ; Surendranath Bam v. Badha llani 
Debi (1940) 2 Cal. 415, 187 I.C. 108, 07 
I.A. 129, (’40) A. PC. 45. 

( 5 ) Kanni y, Ammakannu (1900) 23 Mad, 504; 
Yeluinal Chetty v. Natcsachari (1945) Mad, 
35. 

(0 Kailash v. Kashi (1897) 24 Cal. 339; 


Alamflu V. Bulu (1920) 43 Mad. 849, 26 
I.C. 455, (’15) A.M. 103. 

(«) Sundarasica v. Viyyamma (1925) 48 Mad. 

933, 91 I.C. 40, (’25) A.M. 1267. 

(w) (1920) 43 Mad. 849, 853, 20 I.C. 455, (’15) 
A.M. 103, supra. 

(w) Chotay LaU v. Chunnoo Lall (1879) 4 Cal. 
744, 6 I.A. 15 ; Mutta v. Dora Singa (1881) 
3 Mad. 290, 8 I.A. 99. 

(jc) Advyapa v. RudruL'a (1880) 4 Bom. 104 ; 
Kojiyadu v. Lakshmi (1882) 5 Mad. 149, 
156. 

(y) Tara v.irrwAn.fi (1907) 31 Bom. 495; Gorind 

Bhaicshei v. Bhike Mahadeoshet (1945) 
V.F.C.R. 1. 

(z) Vedammal v. Vedanayaga (1908) 31 Mad. 

100 . 


S.43 


42 


HINDU LAW. 


S.43 


(6) Illegitimate, tiawyAier.— The illegitimate daughter, even of a Sudra, has no 

rights of inheritance to her father (a). But she is entitled to inherit to her 
mother (6). See ss. 163 and 164. 

(7) Exclusion by casiom . — A daughter may be excluded from inheritance by 

special family or local custom (c). *. 


6. Daughter’s son.— 

(1) When entitled to succeed. — The daughter's son is not entitled to succeed if 

there be any daughter hving and capable of inheriting (d), A daughter’s 
son is strictly a bandhu or bbinna-gotra sapinda, being related to the 
deceased through & female, but he inherits with gotraja sapindas by virtue of 
express texts (e) ; see note (5). He succeeds not as an heir to his mother, 
but as ail heir to his own maternal grandfather. 

(2) Takes as full owner. — The daughter's son takes the estate as full owner like 

any other male heir, and on his death the succession passes to his heirs and 
not to the heirs of his maternal, grandfather (/). 

(3) Take per capita. — Daughters' sons take per capita, not per stirpes. A has 

two daughters E and C. B has two sons, and three. B and C die 

in A’s lifetime. A then dies leaving the live grandsons. The estate will 
be divided into five shares^ each grandson taking one share, 

(4) Where daughter s sons are joint. — It was held by the Judicial Committee in 

1902 that two or more sons by a daughter living as members of a joint 
family, take the estate inherited by them from their maternal grandfather 
as joint tenants with rights of survivorship ({7). It is doubtful how far this 
remains good law [See S. 223 (2) ]. But sons by difierent daughters would 
take a.s tenants-in-common, for there can be no coparcenary between sons 
by different daughters (A). -4 dies leaving two grandsons C and D by 

different predeceased daughters, C dies leaving a widow. C’s interest in the 
estate will pass to her as his heir, and not to D by survivorship. 


(5) The daughter.s son occupies a peculiar position in the Hindu law. He is a 
bbinna-gotra sapinda or bandhu, but he comes in before parents and other 
more remote gotraja sapindas. The reason is that according to the old 
practice it was competent to a Hindu who had no son to appoint a daughter 
to raise up issue to him. Such a daughter, no doubt, was the lawful wife 
of her husband, but her son, called putrika putra, became the son of her 
father. Such a son was equal to an aurasa or legitimate son, and took 
his rank, according to several authorities, as the highest among the 
secondary sons. Although, the practice of appointing a daughter to raise 
up issue for her father became obsolete, the daughter’s son continued 
to occupy the place that was assigned to him in the order of inheritance and 
even now he takes a place practically next after the male issue, the widow 
and the daughters being simply interposed during their respective lives (i). 


(а) Bhikya v. Babu (1908) 32 Bom. 662. 

(б) AruTUigiri v. Tianganayaki (1898) 21 Mad. 40. 
(cl Bajrangi v. Manokamika (1908) 30 All. 1, 

35 I.A. 1 ; Parbati v. Chandarpal (1909) 
31 AH 457, 36 I.A. 12ft, 4 I. C. 25 ; 
Balgohind v, Badri Prubad (1923) 50 I A* 
196, 45 AIL 413, 74 I.C. 449, ('23) A PC. 
70 ; Baj Balkan Sinjh v. Bhanwar (1929) 
4 Luck. 690, 118 I.C. 760, ('29) A.O. 629. 
(d) Baijnath v. Mahabir (1878) 1 AH. 608 ; San 
Kumar v. Deo Saran (1886) 8 AU. 365. 


(e) Srimvam v. Dandayudapani (1889) 12 Mad. 

(f) MuUa V. Doraeinga (1881) 3 Mad. 290, 8 

I.A. 99; Multuiuduoanadha v. Periakamx 
(1896) 19 Mad, 451, 23 I.A. 128. 

(?) Jtaja Venkayyamma v. Venkatarama- 
nayyamma (1902) 25 Mad. 678. 20 
I.A, 156. 

(h) liaja VyfMnatha v Yeggia (1004) 27 Mad. 

382, 385. 

(i) In Bombay, the daughter takes not for life, 

but absolutely. 



MITAKSHARA SUCCESSION, 


43 


The difference in his position nnder the old law and the present 
law is that under the fornaer he became by a fiction of law a member of 
his maternal grandfather’s family, while under the present law he is a 
member of his own father’s family, but is also regarded as a son’s son 
to his maternal grandfather for purposes of inheritance (j). “ In regard 
to the obsequies of ancestors,” says the Mitakshara, “ daughter’s sons 
are considered as son’s sons Mit. ch. ii, sec. 2, v. 6. « 

(6) If a daughter is excluded from inheritance to her father by custom, her issue 
also cannot inherit to her father, that is, their maternal grandfather. 
But this does not prevent them from being the alridhan heirs (fc). See 
above, “ Daughter,” note No. (7). 


7. Mother (1).— 

(1) Mayukha Lain . — In cases governed by the Mayukha, the father is preferred 

to the mother (m). 

(2) Limited interest. — The mother takes a limited interest in the estate of her 

son corresponding to the widow’s estate. On her death, the estate passes 
not to h eirs, but to her son's heirs (n). 

(3) Unchaatity and remarriage . — Unchastity of a mother is no bar to her succeed- 

ing as heir to her aon, nor does remarriage constitute any such bar (o). 

(4) Step-mother. — A step-mother is not entitled to inherit to her step-son [p). 

In the Bombay Presidency, however, she is an heir, for she is there 
regarded as a sagotra sapinda (3). See s. 64 below. 

(5) Adoptive mother. — Mother includes adoptive mother, so that an adoptive 

mother, according to the Mitakshara law, succeeds before the adoptive 
father (r). On the death of a sou adopted in dwyamuahyayana form, the 
adoptive mother and natural mother both inherit equally as co-heiresses (s). 

8. Father.— 

Mayukha Law. — In cases governed by the Mayukha, the father succeeds 
before the mother. See note (I) under the head “ Mother.” 


9. Brother.— 


(») of the whole blood. 

(it) of the half-blood. 

(1) Whole before half-blood . — Brothers of the whole blood succeed before those 
of the half-blood It). The half-brothers referred to here are sons of 
the same father by a different mother. Sops_of the same mother by a 
different father are not entitled to succeed as “ brothers ” («). 


O') Karuppai v. Sankaranarayanan (1904) 27 
5{ad. 300, 311-312. See also Balmi Rita 
V. Babu Puran (1910) 1 Pat. L.J. .581, 38 
I.C. 44, ('16) A.P. 8. 

(k) Raj Bachan Singh v. BAanwar (1929) 4 1 uck, 
690, 118 I.C. 700. (’29) A.O. 290. 

(/) Anandi v. Sari (1909) 33 Bora. 404, 3 I.C. 
745. 

(m) Khodabhai v. Bahdhar (1882) 0 Bom, 541. 

(n) Vrijhhukandas v, Bai Parvati (1908) 32 

Bom. 26 ; Jullcssur v. Vggur (1883) 0 Cal. 
725. 

(o) Kojiyadu V. Lakshmi (1882) 5 Mad. 149 ; 

Vedammal v. Vedanayaga (1908) 31 Mad, 
100 ; Dal Sinah v. Dini (1910) 32 All. IS.'i, 
,5 I.C. 521 ; Baldeo v. Mathura (1911) 33 
All. 702, 11 I.C. 43 [michastity] ; Basappa 
V, Rayaia (1905) 29 Bora, 91 tF.B,] 
[remarriage]. 


{p) Rama Nand v. Suryiani (1894) 16 All. 221 ; 
Ranxasaum v. Narasamma (1885) 8 Mad, 
133 ; 2'ahaldai v. Gaya Perskad (1910) 
37 Cal, 214. 5 I.C. 135 ; Seeihai v. Nachiar 
(1914) 37 Mad. 286, 22 I.C. 18, (’14) 
A. M. 30 ; Naianxtka Krxahna v. Collector 
of Tinner, elly (1935) M. W. N. 1001. 

(q) Keeserbai v. Valab (1880) 4 Bom. 188 ; 

Ruswobai v. Zoolekhabai (1895) 19 Bom. 
707. 

(r) Anandi v. Sari (1909) 33 Bom. 404, SIC 

745. 

(ff) Basappa v. Ourlingatna (1933) 57 Bum. 74, 
142 I.C. 634, (’33) A.B. 137; Kaniawa 
V. Sangangowda (1942) Bora. 340, 201 I.C. 
633, (’42) A.B. 193. 

(t) Anani Singh v. Durga Singh (1910) 37 I. A. 

101, 32 All. 363, OI.C. 787. 

(u) Ekoba V. Kashiram (1922) 46 Bom. 716, 60 
I.C. 341, (’22) A.B. 27. 


S.43 



44 


HINDU LAW. 


S.43 


(2) Mayukha Law. — In cases governed by the Mayukha, brothers oi the half- 
blood share with the father’s father (v). 

To the separate property of a person all his brothers succeed though some are 
joint with him as to other property and others are completely divided from 
him (to). 

10. Brother’s son— 

(i) of the whole Wood. 

(ii) of the half-blood. 

(1) Takes before brother's son’s son. — The brother’s son succeeds before the 

brother’s son’s son (x). 

(2) Whole blood before half-blood. — Sons of brothers of the whole blood succeed 

before sons of brothers of the half-blood [see s. 44]. 

(3) Take per capita. — Brothers’ sons take per capita [see s. 32]. 

Note. — The Mitakshara, in discussing the place of tlj^e father’s mother in the 
order of succession, says : “ No place, however, is found for her in the 

compact series of heirs from the father to the nephew 

She must, therefore, of course succeed immediately after the nephew 
Mit., ch. II, a. 5, v. 2. According to this text, as literally interpreted 
"the compact series of heirs’’, that is, the series of heirs first entitled 
to inherit, ends with the brother’s son. But it has been held by the 
Privy Council in Buddha Singh v. Laltu Singh (y), that the expression 
“ brother’s son ” in the above text includes “ brother's son’s son,” so 
that the compact series ends not with the brother’s son, but with the 
brother’s son’s son [No. 11], and the father’s mother [No. 12], takes 
not after the brother’s son, but after the brother’s son’s son. 


11. Brother’s son’s son.— 

(1) See notes to No. 10 above. 

(2) Whole blood before half-blood .- — Grandsons of the whole brother take before 

the grandsons of the Hhlf-brother [see s, 44]. 

(3) Brother’s sons’ sons take per capita [see s. 32]. 

(4) The compact series of heirs under the Mitakshara as interpreted by the 

Privy Council ends with the brother’s son’s son. See No. 10 above 
note (3), 

12. Father’s mother. 

13. Father’s father. 

13A. Son’s daughter.— 


(1) This is the place now assigned to the son’s daughter by the Hindu Law of 
Inheritance (Amendment) Act 2 of 1929. Before that Act she was 
recognized as an heir only in the Bombay [s. 55 (1)] and Madras [s. 56 (1)] 
Presidencies, where she ranked as a handhu. Under the Act she inherits 


(e) Chap. V, b. 8, para, 20. 

(«i) Shdxm Rao v. Krishnarao (1941) Nag, 508, 
(’41) A.N. 297, 

(*) Sher Singh v. Basdeo Singh (1928) 50 All, 
904, 110 I.C. 712, (’28) A.A. 612. 


(y) (1915) 42 I.A. 208, 37 All. 604. 30 I.C. 529. 
(’15) A.PC. 70, approving Kalian Rai v. 
Ram Chandra (1902) 24 All. 128 and dis- 
approving Suraya v. Lakahminara^atnma 
(1882) 6 Mad. 201. 



MITAKSHARA SUCCESSION. 


45 


as an heir in all places where the Mitakshara law applies, and succeeds 
immediately after the father’s father. See note to No. 13D below, 
“ Hindu Law of Inheritance (Amendment) Act 2 of 1929.” 

(2) ^siaie. — The son’s daughter takes an absolute estate in Bombay [s. 170 (2)]. 
• In Madras, she takes a limited estate [s. 168]. She would also take a 
limited estate elsewhere. 

13B. Daughter’s daughter.— 

(1) This is the place now assigned to the daughter’s daughter by the Hindu 

Law of Inheritance (Amendment) Act 2 of 1929. Before this Act, she was 
recognized as an heir only in the Bombay [s. 55 (])] and Madras [s.56 (1)] 
Presidencies, where she ranked as a bandhu. Under the Act she inherits 
as an heir in all places where the Mitakshara law applies, even in provinces 
where before the Act she was not an heir (r), and succeeds next after the 
son’s daughter. See note to N. 13D below, “ Hindu Law of Inheritance 
(Amendment) Act 2 of 1929.” 

(2) Estate. — The daughter’s daughter takes an absolute estate in Bombay 

[s. 17(y^)]. In Madras, she takes a limited estate [s. 168]. She would 
also take a limited estate elsewhere. 

ISC. Sister.— 

( 1 ) This is the place now assigned to the sister by the Hindu Law of Inheritance 

(Amendment) Act 2 of 1929. Before that Act, she was recognized ns an 
heir only in the Bombay [s. 64] and Madras Presidencies [s. 66]. But the 
Act is applicable even where the sister had not been previously recognized 
as an heir (a). 

As regards the Bombay Presidency, she is expressly mentioned as aji heir in 
the Mnyukha. She is not, however, expressly mentioned as such in the 
Mitakshara, but her right as an heir has long since been recognized [s. 64 { 1 ) ]. 
Her place also in the order of succession has long since been established : 
she succeeds immediately after the father’s mother, and before the father's 
father [s. 65 (1), s. 72 (12), s. 77 (12)]. Her place in the order of succession 
is not affected by the Act, for the Act contemplates succession after the 
father’s father, while her place as determined by a series of decisions since 
1865 is immediately after the father’s mother whether under the Mitakshara 
or the Mnyukha (5). 

In the Madras Presidency, the sister ranked as a bandhu before the Act [s. 56 
{])]. Under the Act she succeeds next after the daughter’s daughter. 

(2) Half-sister. — The question whether a half-sister gets the benefit of the Act has 

given rise to difference of opinion. The Privy Council have held (thus 
settling the difference between the various High Courts) that the term 
‘ sister ’ includes a haU-sister ; but a full sister and a half-sister do not take 
together. The latter takes only in default of the full sister (c). 

(3) Estate. — The sister takes an absolute estate in Bombay [s. 170 (2)]. In 

Madras, she takes a limited estate [s. 168]. She would also take a limited 
estate elsewhere. 


{z) Dalaingar Singh v, Jaijiath Kuar (1940) 15 
Luck. 229, 138 I.C. 753, ('40) A.O. 138. 

(a) Bindeshari Singh v. Baij Nath Singh (1938) 
13 Luck. 380, 168 I. C. 733, ('37) A. O. 
402 ; Mt. Rajpali Kunwar v. Surja liai 
(1936) 58 All. 1041 (F.B.), 163 1. C. 756, 


(■36) A. A, 507. 

(6) Shidramappa v. Nitambai (1933) 57 Bom. 

377, 144 I.C. 925, ('33) A.B. 137. 

(c) Mt.Sahodrav. Bam Baba tl9i3) 69I,.4.145, 
45 Bom. L.R. 350, 206 I.C. 396, ('43) 
A. PC. 10. 


S.43 



46 


HINDU LAW. 


S.43 


ii) It ia now held by all tbe coorta tliat the Act applies thougb the laat male-owner 
died before tbe Act. if the Boccesaion in respect of which the question arose, 
openwi after the Act id). But the Act obviouaiy does not apply where the 
succession opened before the Act U). 

13D. Sister’s son.— 

(1) This is the plaee now assigned to the sister's son by the Hindu Law of 
“inheritance {Amendment) Act 2 of 1929. Before that .Act, he ranked as a 
bandhu [a. fH, No. 3]. Under the Act, be succeeds nest after the sister. 

<2j Hindu Law of Inheritance I Amendment) Act 2 of 1929. — This Act applies 
only to cases subject to the Iaw of Jlitakshara." The material section 
is .scftion 2 wliieh ifl as follows : — • 

A son’s daughter, daughter's daughter, sister, and sister’s son shall, in 
the order lio specitird, be entitled to rank in the order of succession 
next after a father's father [No. 13] and before a father’s brother 
[No. 14] ; Provided that a sister's son shall not include a son adopted 
after the sister's death.” 

The Act came into force on 21et February, 1929. ♦ Kia not retrospective. 
It applies only to ca5c.s where the succession opens after that date. 

The -Act applies to -Jains in Gujarat governed by Mayukha, the sister' .s 
son is therefore preferred to father's sister (/ ). 

In asecrtaining the heirs of a maiden's father — they being her heirs in 
respect of her stridhana when she dies leaving neither brother, mother 
nor father — .Act II of 1929 is applicable (y). 

The Act is set out in Appendix A’llI below. 

13E.' Half-sister’s son.— 

This is the place which should be given to the half-sister’s son according 
to the Act. (tiee note under Half-sister, supra.) 

14. Paternal nncle. 

15. Paternal oncle's son [see s. 32]. 

16. Paternal uncle's son's son. 

He succeeds before 20 {h). *■ 

IFAoie blood and half-blood. — See s. 44 and notes thereto. 

17. Fatner's fatlier’s mother. 

18. Father’s father’s father. 

19. Father's paternal uncle. 

20. Father’s paternal uncle’s son. 

21. Father’s paternal ancle’s son’s son. 

22. Brother’s son’s son’s son (»), 

23. Uncle's son’s son’s son. 


(d) Ahfxkunfala Bfvi v. Kaushalya Deri 

CVj-ifi) 17 Lah. 356, 162 1. C. 718, (’36) 
A. L, 124 ; ,Sr(. iicutaTi v, Janki (’36) 
A- L 13'^, 16o I. C. 480; Bmdeshari SUg/t 
Y. Dai} .Vaih Svujh (1938) 13 Luck. 380 

n;t> I i;. 733 , (- 37 ) a. O. 402 ; PolHan 
D'L&mh V. JiHbf, Hama (1937) 16 Pat 
21.4 fl--, B ), 167 I. C. 17, (’37) A, B. 117 
Mi. Rajjiali A'wn«Jur v. ,Surm Rax (19361 
58 Ail. 1041 (F. B.).163 1. C. 756; (’30 
A. A. 507 ; lakRhvxx v. Afiafitaramo 
(1937) Mad. 948 (F.J3 ), 171 I. C. 7. (* 37 ) 


A.31. 699. 

(e) Kannhai Lat v. Mt. Ckamva Devt (1935) 
/rv . 545, (’35) A. A. 203. 

(/> Ambaoaw. Kexhat' BaruiachandilQ41) Rim. 
250, 195 I.C. 172,(’42) A.B. 233, 43 Bom. 
L. Jl. 114. 

(fl) .SftaTnrao t. liaghunandan (1939) Bom. 
22A. (*37) A. H, 194. 

(A) Buddha Singh v. Lallu Singh (1915) 42 I A. 
A^PC "0 

(0 V. Parjaram (1896) 20 Bom, 173. 



MITAKSHAEA SUCCESSION* 


47 


Following the reasoning of the Privy Council in Btiddha Singh v. Laliu Singh{j)y the 
Madras High Court held that the father’s paternal uncle’s son’s son (x3 in the third line 
ol the Table at p. 34) should he preferred to the great*great- grandson of the grandfather 
(x4 in the second line of that Table) (ife). The decision implies that he would be 
also preferred to the great great grandson of the father (x4 in the first line of the Table 
at p. 34), who will also be postponed to the paternal uncle’s son’s son {x3, in the second 
line of that Table) (/). 

So far as ancestors and descendants are concerned, the further continuation of the 
table is of no practical importance. As to collaterals beyond this stage, it is difficult to 
see that one claimant can be superior to another in the capacity’^ to confer spiritual benefit, 
The rules of preference will then probably be : 

(1) He who claims through a nearer ancestor will be preferred to one claiming 

■ through a remoter ancestor, 

(2) In the line of any ancestor, the nearer excludes the more remote. 


44. Whole blood and half-blood. — (1) A sapinda of the 
-whole blood is preferred to a sapinda of the half-blood. This 
preference, howeer, is confined to sapindas of the same degree 
of descent from the common ancestor ; it does not apply to 
sapindas of different degrees (ni). In the United Provinces (w), 
Bengal (o) and Madras (p), this rule applies not only to brothers 
and brothers’ sons, but to remoter sapindas. It has now been 
held by the Privy Council that the rule applies to all the Mitak- 
shara Schools (g) and the Bombay cases (r) holding a different 
view are overruled. The Punjab case (s) holding a view 
similar to Bombay must also be regarded as overruled. 

Thus a paternal uncle of the whole blood ia entitled to succeed in preference to a 
paternal uncle of the half-blood, they being sapindas of the same degree of descent. 
But a paternal uncle of the half-blood is entitled to inherit in preference to the son of 
a paternal uncle of the whole blood, the former being a nearer sapinda of the deceased 
than the latter. * 


According to the Customary Law of K-umaon, applicable to the Khasas, if a man 
dies sonless, his brothers do not inherit as brothers but as sons of the father to whom the 
estate reverted on the sonless man’s death. When nephews or cousins succeed, they take 
their father’s share, t.e., per stirpes and not per capiUt (t). But this principle does not 
apply to the Manrals (u). 


(j) (1015) 42 I.A. 208, 37 All. 001, 30 I.O. 520, 
(’15) A.PC. 70. 

(A) Sooiramxah v. A’a(arajan (1930) 53 31ad. 61, 
127 I.C. 113, (’30) A. M. 534. 
il) V enkateshujara Rao v. Audinarayana (1035) 
58 Mad. 323, 154 I.C. 923, (’35) A.M. 129. 
(m) Suha Singh v. Sarafraz (1897) 19 All. 215 
[F. B.) ; Ganga Sahai v. Kesri (1915) 
42 T.A, 177, 37 All. 545, 30 I.C. 2(J5, 
(’15) A.PC. 81. 

(rt) (1807) 19 All. 215 [F. B.], supra. 

(o) Sham Singh v. Kishun Sahai (1907) 6 (?al. 

L. J. 100. 

(p) Nachiappa v. Rangasaini (1915) 28 Mad. 


L.J. 1, 26 I.C. 757, (*15) A.M. 1088 [F.B.l. 
(j) Garudd€is v. Laldas (1933) 60 I. A. 189, 
142 I. C. 807, (‘33) A. PC. 141. 

(r) Samat v. Amra (1882) 6 Bom. 394, 397 ; 
Viihalrao v. Ramrao (1000) 24 Bom. 317 ; 
Saguna v. Sadashio (1902) 26 Bom. 710, 
715 ; Shankar Ba}i v. Kashinath (1927) 51 
Bora. 194, 100 I.C. 430, (’27) A.B. 97. 

(j) Hiranand Maya Das (1894) PimJ. Kec., 
no. 83. 

(0 Tularam v, Shyamlal (1924) 49 All. 818; 
Ganga Sah v. Bengal Sah (1939) All. 122. 

(u) Lachhan Singh v. Jhagar Singh (1989) All. 
406, (’39) A.A. 437. 


Ss. 

43,44 



48 


PINDU LAW. 


Ss. 

' 45,46 


Samamdakas. 

45. Order of succession among Samanodakas. — Failing 
all sapindas, the inheritance passes to samanodakas, the 
nearer line excluding the more remote, and a nearer 
kinsman in one line excluding a remoter kinsman in the same 
line (v) [s^. 40, 44]. 

Bandhus. 


46. Bandlius- (i) On failure of sapindas and sama- 
nodakas, but not until then, the inheritance passes to 
bandhus {w). 

(2) The gotraja sapindas and samanodakas of a Hindu 
are all agnates, that is, persons connected with him by an 
unbroken line of male descent. The bandhus or bhinna-gotra 
sapindas are all cognates, that is, persons connected with him 
through a female or females. The bandhus of a person are his 
blood-relations connected through females who have passed into 
other families or gotras (or). 

(<?) Every bandhu must be related to the deceased through 
at least one female. He may, however, be related to him 
through two females {y) or even more than two. 

(4) The Mitakshara [ch. 2, sec. 6, para. 1] mentions 
three classes of bandhus, namely (1) Atma bandhus, that is, 
one’s own bandhus, (2) Pitri bandhus, that is, the father’s 
bandhus, and (3) Matri bandhus, that is, the mother’s bandhus, 
and enumerates the folloAving nine relations as bandhus : — 


I. Atma bandhus : — 

1. father’s sister’s son ; 

2. mother’s sister’s son ; 

3. mother’s brother’s son. 


The Tvord " son ” is used in a generic sense and includes son’s son {z). 


(v) SarvadhikarTb Hindu Law of Iiilieritan'*e, 

2nd ed., p. 087. 

(w) Bam Baran v. Kamla Praaad (1910) 32 Alt. 

594, 6 I.C. 098. 

(z) Vedackela v. Subratnama (1921) 48 I. A 
349, 354, 44 Mad. 763, 64 I. 0. 402. (’22) 
A. PC. 33. 

(y) Krishna v. Venkaiarama (1906) 29 Mad. 


(0 


115 ; Vmkatagiri v. Chnndru (1900) 23 
fluid. 123 ; Parot Jiapalal v. MeJiia Harilal 
(1896) 19 Bom. 631. 

Adtt Sarayan v. Mahabir Prasad (1921) 
48 I. A. 80, 6 Pat. L. J. 140, 00 I. C. 251, 
( ^0 A. PC. 53 wliere it was held that a 
mother'B slater's son's son Is an a(ma 
bandhu. 



MITAKSHARA SUCCESSION. 


II. Pitri handhus : — 

4. father’s father’s sister’s son ; 

5. father’s mother’s sister’s son ; 

. 6. father’s mother’s brother’s son. 

ni. Matri handhus : — 

7. mother’s father’s sister’s son ; 

8. mother’s mother’s sister’s son ; 

9. mother’s mother’s brother’s son. 

It was at one time thought that only the nine relations 
expressh' mentioned in the Mitakshara were bandhus. But 
it is now well established that the enumeration of bandhus 
in the Mitakshara is illustrative and not exhaustive. For it 
would be unreasonable to hold that the mother’s brother’s 
son is a bandlfti; and his father, that is, the mother’s brother, 
is not a bandhu (a). And likewise, it would be unreasonable 
to hold that the mother’s brother is a bandhu and his father, 
that is, the maternal grandfather is not a bandhu. Thus the 
mother’s brother, the maternal grandfather, and several other 
relations have been held to be bandhus. 


Besides the nine relations enumerated in the Mitakshara, the following relations have 
been held to be bandhus, namely : — 

son (6).] Under the Hindu Law of Inheritance (Amendment) Act 2 
of 1929, the sister’s son inherits with gotraja sapindas, and succeeds next 
after the sister. See s. 43, No. 13 H. 

Half-sister’s son (c) but not a sister’s step-son (d). 

Brother’s daughter's son (e). 

Daughter’s son's son (/). 

Sister’s son’s son {g). 

Daughter’s daughter’s son (A). 

Sister’s daughter’s son (i). 

Father's sister’s son’s son (j). 

Father’s sister’s daughter’s son {k). 


(a) Grulhari Lull v. Benaal (joiernimni (1808) 
12 M. I. A. 448 , Muthu'iwamiy. Sivium- 
bedu (1896) 19 Mad. 405, 23 I. A. 83. 

{b) Amrita Kiimari v. Lakhinarayan (1808) 2 
Bong. L.ll. [F.B.] 28 ; Chelikani v. Vencata 
(1871) 6 Mad. H.C. 278 ; Raqhunaih v. 
Miinnan Misr (1898) 20 All. 191. 

(c) Subbaraija v. Kylasa (1892) 15 Mad. 300. 
(4) Saimnalhax (1922) 45 Mad. 257, 

65 T. C. 730, (’22) A.M. 40. 

(/») Mmsamutt Doorga Bibee v. Janki (1873) 10 
Beng. L. B. 341. 

(/) Krisknayi/a v. Pichamnui (1388) 11 Mad. 
287 ; Sheobarat v. Bhugivati (1895) 17 AH. 
523; Tm(7>w(«'’littnar v. Andal (1007) 
30 Mad. 400. 

(g) Balusami v. yarayana (1897) 20 Mad, 342. 


(h) (1907) 30 Mad. 406, iiupra\ AUidhiu v. Bojh 

Sumar <]900) 3l All. 454,' 2 I. C. 370; 
Itavichal v. Pan Mali (1910) 32 All. 640, 
7 I. C. 292 ; Kalimuthu v. Amtnatnutha 
(1934) 58 Mad. 238, 153 T.C. 107, (’34) A. 
M. 611. 

(i) Umaid Bahadur v. Udoi Chand (1891) 6 

Cal, 119 [P. B.] ; Sham Dei v. Bir- 
bhadra Prasad (1921) 43 All. 463, 02 I.C 
432, (’21) A. A. 178. 

(j) Urihar v. Bam Davr (1925) 47 All. 172, 82 

I. C. 1032, {'25) A. A. 17. 

(A:; Parot Bavalal v. Mehta Tianlal (1895) 19 
Bout. 631 ; Peiifcatagin V. C/iaadnc (1900) 
23 Mad. 123; Krishna v. Venkatarama 
(1900) 29 Mad. 115. 



HINDU LAW, 


46 , 4il 


Mother’s father (2). 

Maternal uncle (m). 

Grandfather’s son’s daughter’s son (m). 

Great grandfather’s son’s daughter’s son (o). 

Great great grandfather’s son’s son’s daughter’s son {p). 
Father’s father’s father's daughter’s son {q). 
father’s father’s sister’s son’s son (r). 

Father’s mother's brother (a). 

Father’s maternal grandfather’s daughter’s son (t). 
Mother’s mother’s brother’s son’s son («). 

Mother’s mother’s brother’s daughter’s son (e). 

Mother’s sister’s son’s son (w). 

Mother’s father’s adopted son {x). 

Mother's father’s grand nephew (y). 

Father’s sister’s son’s daughter’s son (z). ^ 

Mother’s paternal grandfather’s daughter’s son’s son (o). 
Mother's paternal grandfather’s son’s son’s son (o). 


47. Rules for determining heritable bandhus. — Are all the 
blood relations of a person connected through a female, 
heritable bandhus or bhinna-gotra sapindas ? 


(i) The question naturally arises whether the term 
‘ sapinda in this connection, is used in the general sense 
(s. 36) or the narrower sense (s. 37). In other words, whether 
all the relations connected by community of particles of the 
same body (whatever the degree of relationship to and from a 
common ancestor may be) are entitled to inherit as bandhus or 
only those who are connectefd within certain specified degrees. 

This question arose for decision in Eainchandra v. 
Vinayak (6). In that case the relationship between the 


(1) C/iinm mmal v. Yenkata^hala (1892) 15 Mad 
421. 

(m) Muthusami v. Siimmbedu (1896) 19 Mad. 

405, 23 I.A. 83 ; Vedw'hela v. Su>yramania 
(1921) 48 I. A. 349, 44 Mad. 753, 64 
I. C. 462, (’22) A. PC. 33. 

(n) Tirath Ram v. Mst. Kahun Devi (1920) 

1 Lah. 585, 595-0, 00 I. C. 101, C2l) 
A. L.149. 

(o) Ra m Sia v. Bua (1925) 47 All. 10, 84 1.C. 300 

(’24) A.A. 700 ; Parmanandaa v. Parbhvdas 
(1912) 14 Bom. L. K. 630, 16 I.C. 691. 
(j>) Mantk Chand v. Jagal Settajii (1890) 17 
Cal. 518. 

( 7 ) Knahnay. 7enfratortt?na(1906) 29 Mad. 115. 
(r) Selhurama v. PonnamiTtal (1889) 12 Mad. 
155 ; Chamanlal v. Ganesh (1904) 28 
Bom. 453. 

(fi) Gridhari Lall v. Bengal C?oi'emrrt«nt (1869) 


12 M. 1. A. 448. 

(t) Ananda Bibee v. Nownit Lai (1883) 0 Cttl. 
315, 327. 

(tt) RaUiaaubbu v. Ponnappa (1882) 5 Mad. 69. 
(t) Babu Lai v. Nanku Ham (1895) 22 Cal. 339. 

(w) Adit iVarayan v. Mahabir Prasad (1921) 

48 1. A. 80, 6 Pat. L. J. 140, 60 I. C. 
251, (*21) A. PC. 63 ; Bai V^li v. Bai 
PrabhalakshmxO-^dl) 0 Bom. L. R. 1129. 

(x) Padma Coomari v. Court of Wards (1881) 8 

I. A. 229, 8 Cal. 302. 

(y) 8. X. A. 229, 8 Cal. 302 , suvra. 

( 2 ) Kew Singh v. Secretary of Stale (1926) 49 
Mad. 052, 05 I.C. 651, (’20) A. M. 881. 
(a) Chengiah v, Subharaya (1030) 68 Mad. 

L. J. 662, 128 T. C. 172. (’30) A.M. 665. 
(o) Ramrhandra v. Vinayak (1914) 41 I A 200, 
312, 42 Cal. 384, 420, 25 (. C. 290. (’14) 
A. PC.l. 



MITAKSHARA SUCCESSION. 


51 


deceased and the claimant was as appears from the following 
diagram : — 

F 


S.47 


s 


S 


s 


d 



Si (propositus) 
Daughter 


S2 (claimant) 


After the death of the last male owner (Si), his daughter 
enjoyed the property. On her death without issue the 
claimant (S2) claimed the property. He traced his relationship 
to the common ancestor through his mother. If the narrower 
sense of the term ‘ sapinda ’ is adopted, he is beyond five 
degrees {Vide explanation I below) and he is not entitled to 
inherit. It was accordingly argued on his behalf that any 
person related through a female is a heritable bandhu, and there 
is no restriction as to degrees. It was also contended that the 
narrower sense of ‘ sapinda ’ in Mitakshara chap. Ill is 
confined to prohibition in respect of marriage and has nothing 
to do with inheritance. The Judicial Committee did not 
accept the contention. It was held that “ Vijnaneswara was 
using the term bandhu in a restricted and technical sense ” 
and that the claimant was not a heritable bandhu. 


When the claimant claims through a male, according to 
the restricted sense of the term “sapinda” he must be within 
seven degrees. The Allahabad and Bombay High Couids have 
held that, even when the claimant traces relationship through 
his father, heritable bandhuship ceases with the fifth degree (c). 
It is submitted that, in such a case, the rule of seven degrees 
would apply. 


(c) Brijmoftan V. iCMfteniaZ (1938) A. L. J. 670, | 
(’38) A. A. 443; Baiimavl Kamji v. I 


Vasudeo Uutnna^t (1943) Bom. 465, 206 
I.a 152, (’43) A. B. 89. 



52 


HINDU LAW. 


S.47 


The general conclusion arrived at in Ramchandra v . V inayak 
that “the sapinda relationship, on which the heritable right of 
collaterals is founded, ceases in the case of the bhinna-gotra 
sapinda with the fifth degree from the common ancestor {d), 
is applicable only to cases where the claimant claims through his 
mother as* in that case. This is the view of Venleatasubba Kao, 
J., in Kesar Singh v. Secretary of State for India (e). He said 
“ I have said in the course of this judgment that in the case of 
bandhus, sapinda relationship ceases beyond the fifth from the 
mother and the seventh from the father. This is repeatedly 
referred to in the judgment of the Judicial Committee in 
Rainchandra v. Yinayak. The question in that case was 
whether the plaintiffs who claimed through then mother but 
who were bhinna-gotra sapindas beyond the fifth degree could 
inherit. It was held that he could not. I feferred to this 
point because there are some observations in the judgment 
which may at fhrst sight seem to imply that the hmit of sapinda 
relationship in the case of bandhus ceases wth the fifth degree 
irrespective of whether the claim is traced through the father 
or the mother. . . '. There is nothing in the judgment 
to suggest that their Lordships intended to do away in the 
case of bhinna-gotra sapindas the well recognised distinction 
dependent upon whether the claim is traced through the 
father or the mother. The view which their Lordships refused to 
accept is that of Golapchandra Sarkar Shastri — the view which 
was pressed before the Judicial Committee by Mr. De Gruyther 
to the effect that the word ‘ Jbandhu ’ includes either all cognate 
relations without any restriction or at any rate all cognates 
within seven degrees on both the father’s as well as the mother’s 
side. The distinction to which I have referred is recognised 
in all works of Hindu law whether the writer belongs to 
the school of Sarvadhikari or not.” 


Explanation I. — The five degrees, according to the Hindu 
mode of computation, are to be calculated from and inclusive 
of the deceased in the case of ascendants and descendants 
of the deceased, and from and inclusive of the common 
ancestor in the case of descendants of the common ancestor. 


The father’s father’s son’s son’s daughter’s daughter’s son is not a heritable bandhu 
for he IS m the sixth degree from the common ancestor, that is, the father’s father (/). 


(d) 

(«) 


(1914) 41 1. A. 290, 312, 42 Cal. 384. 420 
26 I.C. 290, (’14) A. PC. 1. 

(1926) 49 Mart. 652, 689, 95 I. C. 651, (’26) 


A, M 881 

290, 42 Cal. 384. 25 I. C. 
290> (’14) A. PC. 1, $upra» 



MITAKSHARA SUCCESSION. 


53 


For the same reason the father’s father’s son’s son’s son’s daughter’s son is not a 
heritable bandhu {g) ; so also the great-great-grandfather’s great-grandson’s daughter’s 
son is not a heritable bandhu (A). In these cases, as the claimants trace their descent 

through their mothers, the sapinda relationship ceases with five degrees. 

« 

Cjises of claimants claiming through the fathers, being more than five degrees but 
not more than seven degrees have not come up for decision before the Courts. The 
following special cases may be noted. It is assumed that there is no difcciilty as to the 
number of degrees on the owner’s side : — 

(1) Diagram 1. 

A 

I 1 

I 

B C 

I 

D 

I 

owner E 

1 

d 

^ (claimant’B father) 
claimant 

In this case the claimant (tracing his relationship through his father) is not more than 
seTen degrees from the common ancestor ; and may, at first sight, be regarded as a herita- 
ble bandhu. But S (his father) who claims through his mother is more than five degrees 
from A, and is not a heritable bandhu. To hold that the claimant is a bandhu and S, 
his father is not a heritable bandhu, is an anomaly. The sapindaship of the claimant 
in such a case is described as a sapindaship by frog’s leap (Dr. Sarvadhikari’s Principles 
of Hindu Law, 2nd ed., p. 592). He is not a heritable bandhu. 

(2) Diagram 2. 

A 


c 
I 

H 

I 

d 

claimant’s father 
claimant 

In this case, the claimant (claiming through his father) is within seven degrees. 
His father (claiming through his mother) is not beyond five degrees. Both are 
heritable bandhus. 


I 

B 


owner 


(o) Shib Sahai v. Saraswati (1915) 37 All. 5^3, 
30 I. C. 903, ('15) A.A. 409. The decialon 
Is correct, but the mode of computation 
adopted In the cnee Is, It is suDmitted. 
Incorrect. This has now been recognised 


in Ram Sia v. Bua (1925) 47 All. 10, 84 
I.C. 860, ('24) A.A. 790. 

(A) Ram Parshad v. Jdu Mai (1932) 13 Lah. 
247, 134 I.C. 122, ('32) A. L. 394. 


S.47 



54 


HINDU LAW. 


S. 47 ' (ii) “ In order to entitle a man to succeed to the inherit- 

ance of another he must be so related to the latter that they are 
sapindas of each other ” (i) ; in ether words, the right of 
inheritance accrues to a -bandhu, if the late owner and the 
person claiming the inheritance were related as sapindas 
to each olAier. By reason of the principle of mutuality, the 
diagrams in the preceding rule will hold good, if the owmer and 
claimant are interchanged. Thus, the first diagram becomes 
the accompanying diagram, by the principle of mutuality. 

J ust as the claimant in Diagi'am 1 
Diagram 3 is a sapinda by frog’s leap and 

\ is not a heritable bandhu, the 

owner in the Diagram 3 is a 
sapinda by frog’s leap and is 
I not a heritable bdndhu of the 
g claimant. Therefore, by the rule 

I mentioned in this paragraph, the 
claimant is not a heritable 
j bandhu of the owner. 

claimant E But if the interchange is 

j made in Diagram 2, the result is 

d that the owner is a heritable 

[ bandhu of the claimant. There- 

S fore, the claimant is also a herita- 

I Vde bandhu of the owner, 
owner 

(hi) Is there any other principle limiting heritable 
bandhus ? There are two views on this matter. 

(a) Dr. Sarvadhikari noticing the fact that the nine 
bandhus enumerated in the Mitakshara are descendants from 
common ancestors who are members of the following four 
families, namely 

(1) The family of the propositus and his agnate ancestors, 
e.g., one s father’s sister’s son, one’s father’s father’s 
sister’s son. 


(i) Jiamchandra v. Vinai/af: (1914) 41 l.A. 290 
312. 42 Cal. R84, 25 T. C. 2P0, ('14) 
A . PC. 1 ; Umaid Bahadur v. Udni Chand 


(1881) B Cal. lift tV.B.l ; Batu Lai t 
Nanku Ram (1805) 22 Cal. 330. 



MITAKSHARA SUCCESSION. 55 

(2) The family of the mother’s agnate ancestors, e.g., 
one’s mother’s sister’s son, one’s mother’s brother’s 
son, one’s mother’s father’s sister’s son. 

,(3]f The family of the father’s mother’s agnate ancestors, 
e.g., one’s father’s mother’s sister’s son and one’s 
father’s mother’s brother’s son. • 

(4) The family of the mother’s mother’s agnate ancestors, 
e.g., one’s mother’s mother’s sister son and one’s 
mother’s mother’s brother’s son. 


and applying the principle of mutuality, infers that the preposi- 
tus must be a descendant of a common ancestor who is a member 
of the following families, viz., (i) claimant’s agnate family, 
(ii) claimant’#, mother’s agnate family, (hi) claimant’s father’s 
mother’s agnate family, (iv) claimant’s mother’s mother’s 
agnate family, that is to say, the claimant must be either 

(a) a member of the families 2, 3, 4 
or (b) a daughter's son I 

or (c) a daughter’s son’s son ^of the four famihes 1, 
or (d) a daughter’s daughter’s son J ^ 

Accordingly the following four kinds of descendants are 
excluded 


(1) Daughter’s daughter’s son’s son — Vmaid Bahadur y. 

Udai Chand (1880) 6 Cal. 119. This is only an 
obiter dictum. The actual decision related to 
daughter’s daughter’s son. 

(2) Daughter’s son’s son’s son — Ghinna Pichu v. Padma- 

nabha (1921) 44 Mad. 121, 59 I.C. 690, (’21) A.M. 
671. Only one judgment is based on Dr. Sarvadhi- 
kari’s reasoning. The reasons given by the other 
j udge are different. The decision cannot be regarded 
as of much weight : Lowji v. Mithabai (1900) 2 
Bom. L.R. 842. The decision assumes that the 
bandhus should be found only in the above- 
mentioned four families. 



56 


HINDU LAW. 


(3) Daughter’s son’s daughter’s son — Gajadhar Prasad v. 

Gavri Shankar (j). 

(4) Daughter’s daughter’s daughter’s son— That is, there 

cannot be tiiree females between a common a-ncptor 
and the claimant or the propositus. 

• 

(b) According to the second view, the Mitakshara merely 
enumerates the first cousins of the propositus, of his father and 
of his mother. It was not intended to limit heritable bandhu- 
ship to particular individuals or to descendants of particular 
families, or to certain kinds of descendants in these families. 
No ancient text supports such limitation. The definition of a 
bandhu as a bhinna-gotra sapinda even adopting the narrower 
meaning of the term ‘ sapinda ' does not involve such limitation. 
The Judicial Committee has held (s. 46) that thg^ enmneration 
of the bandhus in the Mitakshara is not exhaustive. Then 
why should one infer by implication that the families in which 
bandhus are to be found — families not mentioned as such by 
Vijnaneswara — are exhausted by the enumeration of the 
bandhus Similarly, why should the enumeration be con- 
sidered exhaustive as to the types of descendants in these 
families '? Accordingly it was held in Kesar Singh v. Secretary 
of State {h) by the High Court of Madras that the father’s father’s 
daughter’s son’s daughter’s son was a heritable bandhu. The 
following diagram explains the relationship of the claimant 
with the propositus in that case : 

c 

L 

1. i 

^ ^ (propoaitns) 

I) 

S (claimant) 

In the ahoTe diagram C represents the common ancestor. S represents the son and 
D the daughter. Here the claimant claims relationship through his mother and is fifth in 
descent from the common ancestor C. The propositus traces relationship through 

his /otfterandis/ftird in descentfromthecommon ancestor, C. that is, within seven degrees 

from him. The test of degree is thus .satisfied. Upon the same facts the test of mutual- 
ity is also satisfied. No other test or limitation is essential. 

'i) U«82) 5^ AU. OSS, 138 I.C. 5r,l. «5 I.c. 



MITAKSHARA SUCCESSION. 


57 


In the course of the judgment, it was pointed out that at the time of the decision Ss. 

In Vmaid Bahadur v. Udai Chand (1880) 6 Cal. 119, Dr. Sarvadhikari was delivering 47,48 

his lectures and the obiter dictum of the learned judges in that case was probably 
based on his view. 

According to this view, there may be three females intervening between the common 
ancestor and the claimant propositus, that is, in the line of ascent or line of descent. 

For example, in the accompanying diagram, the owner and claimant are each within five 
degrees and each is sapinda of the other. Here the claimant is a heritable bandhu 
though there are six females intervening between him and the owner. 


A 



^ d d 

I .1 

owner claimant 

This point has not yet arisen before the Judicial Committee. It is submitted that 
the Madras view is correct. 

(1) Dr. Sarvadhikari implies more than can be legitimately read in the test of the 
Mitakshara (2). 

(2) The rea.soning of the Allahabad High Court differing from the Madras view 
proceeds, to some extent, on the difiSoulty of fitting with the Madras view the groups 
atma bandhus, pitri bandhus, matri bandhus. That all bandhus should be divided into 
these three classes only is itself doubtful. (See infra s. 54A.) 

A Full Bench of the Madras High Court has affirmed its former view overruling 44 
Mad. 121 and dissenting from 6 Cal. 119 & 54 All. 698 (to). 

48. Who are heritable banclhus.--We are now in a position 
to enumerate the heritable bandhus whichever view — that of 
Madras or Allahabad — ultimately prevails. In each particular 
case, it is enough to see (1) whether he is a sapinda in the 
narrower sense, and (2) whether there is mutuality between 
the owner and the claimant. If the Madras view prevails, all 
other conditions are immaterial. If the Allahabad view is 
accepted, (3) he must belong to one of the four types of 
descendants and he must be descended from an agnate member 
of any of the four families (n) and must be within five degrees 
of the common ancestor. The last clause also represents the 
Bombay view (o). 

(i) Uma Shanhar v. y^aqe^hari (1918) 3 Pat. 437. 

L. J. 0C3, 48 T.C. 625. ('18) A. P. I. (n) Gajad^iar Prasad v. Gain ShanKcr (1932) 

(m) Seelam yanam'n.a v. Reddam JAnoareddi 54 AU. 098, 138 I.C. 501, (’32) A. A. 417. 

(1943) Mftd. 754, 209 I.C. 80, (’43) A.M. (o) Seft cases cited in footnote (c) p. 51,s«pro. 



58 


HINDU LAW. 


Ss. 

48.49 


In the foliowing diagram the males (s) are all bandhua of the propoaitus, A being 
a cognate ancestor of his. 


1 

i ! 

Madras. 


n 

d 


! ! 1 .[ I 


i ! 


A 



s s s s 

Allahabad. 


e 


In the aboTe diagrams sapindas by frog's leap are excluded. A 's daughter's son’s 
daughter’s son shown in the Madras diagram was recognized in Ketari Singh's case (p) but 
not in Go/'iittor v tra*Ti Shnntar (g). .I’s son's son's daughter’s son's son shown m the 
ifadtas diagram is not now held to be an heir in Brijmohan v. AwAenZoi (r). 

If -4 is an agnate ancestor of the owner, all the s's on the extreme left are Gotraja 
Sapiodas. The others are bandhus. 


49. Tkree classes of bandhus. — Tliree clafsses of bandhu-s 
have aireadr beeu mentioaed [s. 46 (4)]. 


Alma bandhus may be subdivided into — 

\1) ojrJi^r‘.5 cognate descendanta, 

<.^1^ father' ^ cognate desoendants — of these the aisfer's son has'\ 

gone higher \ip by legislation. ! ancestor 

> and 

(31 cognate descendants of fiUher s faiher^ and molher's fathsr and j coliaterab. 
hi3 descendants. J 

Pitri bandhus may be subdivided into — 

(1) Jaih^r's Jtiihf'r's fnfhpr's cogniitL' descendants, 

{'!) falhtr\i mothrr's father and his doHcondants. 


Mnlri bdridhus niuy b<> .subdivided into — 

(1) 7iioUi'’r'fi fft(fur ft ptihif and hm tl^'sccndantu, 

(2) moiKt'f » nuAhi'r^ii fntfif* arnl Jim denccndants. 


All the al )OV(5 bniidlius should .satistV the limi t of degrees. 


(p) (lltiS) *9 Mad a.‘> I C. 0 . 11 . CSO) A. M 

S!.l. 

{«) U»S2i M All, OSS, ISS I C. 181, i'3S) A.A. 


417, 

(r) (193i' A. L 670, I SSI A. A. 443. 



MITAKSHARA SUCCESSION. 


59 


50. Rules for determining order of succession among male 
bandhus. — First rule laid down by the Judicial Committee. — 
In Muthmann v. Mvlhuhimaranaini (s), the claimants were 
(1) mother’s half brother and (2) father’s father’s sister’s son. 
The Ma^dras High Court in the course of the judgment [t) 
laid down four propositions. The first proposition defines 
bandhu. The second proposition lays down that, the three 
classes atma bandhus, pitri bandhus, and matri bandhus succeed 
in the order in which they are named. Accordingly the 
mother’s half brother who Tvas an atma bandhu wns preferred 
to the rival claimants who were pitri bandhus. This judgment 
was afl&rmed by the Privy Council. Thus, the first rule we get 
relating to the order of succession among the bandhus is 
(1) Atma bandhus (one ’s own bandhus) su cceed before pitri 
bandhus (father’s bancltius), and p^^n bandhus succeecT before 
matri (mother’s bandhus). 

Illustratiom. 

(a) The mother's father’s daughter’s son's son (mother’s sister's grandson), fs. 54, 
no, 25 at p. 67]. being an atma bandhu, is entitled to succeed in priority to the mother’s 
father's father's daughter’s son (mother's paternal aunt’s son) fp. 68, no. 6] who is a 
malri bandhu • Adit Karayati v. Mahnbir Prasad (1921) 48 I.A. 86, 6 Pat. L.J. 140, 60 
I.C. 251, (’21) A. PC. 53. 

(b) Father’s sister's daughter's son being an atma bandhu is entitled to succeed in 
priority to paternal grandfather's sister's son, who is a pitri bandhu («). 

It is important to note, as observed by the Privy Council, that rule (!) is not depen- 
dent on individual propinquity or on the efficacy of offerings to the deceased («). 

50A. Descendants preferred to those who are not descend^ts. 
— We have seen (sec. 49) that atma bandhus may be divided 
into (1) descendants of the propositus, (2) those who are not 
descendants. 

No case of rival claimants, one being a descendant and the 
other not, has come up before the Judicial Committee. The 
Bombay and Madras High Courts have held that the descend- 
ants of the propositus are entitled to preference over those 
who are not descendants. In Dattatraya v. Gangabai {w), the 
rival claimants were a son’s daughter’s son and the father’s 
daughter’s daughter. The claim of the latter would be 
disallowed in Madras on the ground that all female bandhus rank 


{«) (1896) 19 Mad. 405, 23 I. A. 83. 

(t) MuUusami v. ^fH^tHkum(lra■sami (1893) 16 

Mad. 23. 

(u) iCns/ina Agyanijar v. Venkatarama Ayyaw- 

gar (1906) 29 Mad. 115. 


(t») Adit yarayan v. Mahabir Pninad (1921) 
48 I.A. 86, 95, 60 I.C. 251, ('21) A.PC. 53, 

(it) (1922) 46 Bom. 541, 77 I.C. 17, (’22) 
A. B. 321. 


Ss. 

50,50A 



60 


HINDU LAW. 


Ss. 

SeA,51 


after male baadhus and in any other province on the ground 
that no female bandhus are recognized. But this ground for 
rejecting the claim is not available in Bombay where female 
bandhus are recognised (s. 56 infra). The sister’s daughter’s 
claim was rejected on the ground that she was a collateral, her 
rival claimant being a descendant of the propositus. In a 
Madras case in which the succession opened before the passing 
of Act II of 1929, the rival claimants were (1) daughter's daugh- 
ter’s son and (2) sister's son. It was held that the former was 
entitled to preference (x). 


51. Second and third rules laid down by the Judicial 
Committee. — In Vedachela v. Subramania (y), the claimants 
were (1) a maternal uncle (appellant) and (2) a paternal aunt's 
son’s son (re.spondent). The Madras High Court held that the 
latter who is a bandhu ex parte paterna was entitled to succeed 
in preference to the former who was a bandhu ex parte matema. 
On appeal the Judicial Committee reversed the judgment of 
the High Court. Their Lordships observed “‘In the absence of 
any exjness authority x'arying the rule, the propositions enunciated 
hi Mixttusami v. Muttukumarasatni (z), which on appeal icas 
affirmed by the Judicial Committee (a), furnish a safe guide." 

The first two propositions have been already stated 
(s. 50). The next two propositions are 

(3) That the examples given therein are intended to 
show the mode in ^vhich nearness of affinity is to be ascertained: 


(4) That as between bandhus of the same class, the 
spiritual benefit they confer upon the propositus is, as stated 
in the Viramitrodaya, a ground of preference. 


After stating their general approval of the propositions in the manner stated above, 
without fiuoting them, the Judicial Committee finally conclude thus : 

“ In the present case before their Lordships, the appellant and the deceased were 
sapindas to each other ; and the appellant is undoubtedly nearer in degree to the deceased 
than Subramania. He also offers oblations to his father and grandfather to whom the 
deceased was also bound to offer pinda. The deceased thus shares the merit resulting 

from the appellant's oblations to the manes of his ancestors whereas the father's sister’s 
son's son offers no pinda to the deceased ancestors.” In this Tman,., n. ■ r j i- 

.b. Mbta. 

are:(l) the nearer m degree is pr eferable to the more remote; (2) he whoconfer's 


j (r> (18113) 16 Mad. 23, 30. 


(x) Kulimulhu y. Ammarnulhv (1935) 58 fliad 

23S, 153 I.C. 107, f'34) A.M. Oil. j ' ' ' 

(,) (1921) 48 _I,A 3W, 3e4,J4Jlad. 753. 767, «•) V mW) 23 I.A. 

I Ow, iJ ALhq. 405. 


64 I.C. 102/ '22) A. PC, 33, 



MITAKSHARA SUCCESSION. 


61 


spiritual benefit on the deceased is preferable to one who confers none. From the order 51 

in which these two rules are stated one may inft r that the rules should be applied succes- 
siTcly in the order in which they are mentioned. First, we must apply the rule baaed on 
nearness in degree. If this rule fails we must apply the rule based on superiority of 
spiritual benefit (6). The matter is made clearer by the next decision of the Judicial 
Committee. * 

In Jotiyidra Nath Roy v. Nagendra Nath Roy (c), in which 
the parties were governed by the Benares school of th*e Mitak- 
shara, the contest was between the mother’s sister’s son and the 
father’s half-sister’s son, both atma handJms, and the latter was 
preferred to the former on the ground of the superior spiritual 
efficacy of the pinda offered by him. In that case their Lord- 
ships of the Privy Council observed as follows : — 

“ No doubt, propinquity in blood is the primary test, 
but . . . the V iramitrodaya brings in the conferring of 

spiritual benefit* as the measure of propinquity nhere the degree 
of blood relationship furnishes no certain guide." 

From the above two cases we get the following rules ; — 

(1) Propinquity in blood or nearness in degree gives a 
ground of preference (d). 

(2) When it fails (and not until then), the conferring of 
spiritual benefit is a ground of preference (c). 

It lool^^,if the phrases nearness in degree ”, propin- 
quity in blo^im ’, and degree of blood relationship are used 
in the ordinary sense of the steps between the claimant and the 
propositus and not in the technical sense of ancient Hindu 
Lawyers. If so, the decision noted below is also an obvious 
case (/). 

Spiritual efficacy as a ground of preference amoiiy bandhus. — la the last 
mentioned case, their Lordships observed (^), Applying it to the parties in the 
present appeal, it is obvious that the respondents offer the fuU cake to the paternal 
grandfather and great-grandfather of the jfropositus, while the appellant offers it to 
his maternal grandfather, great-grandfather and great-great grandfather. Thus, no 
doubt, the appellant offers three cakes . and the respondents only two. But the 
propositus participates only in oblations made to his three immediate paternal ancestors 

(6) Chentjiah v. Subbaraya (1930) 5B Mad. L. J. Behari Lai (1043) All. 131, 207 l.C. 17, 

502, 128 l.C. 172, ('30) A. 31. 555, where (’43) A. A. 177. (An obA-iaiiis ciu^e). 

the rival claimants are both matrihaodhus. (c) Ademma v. Hanuma Reddi (1038) 3[ad. 2(50, 

(c) (1932) 59 Cal. 576, 58 I. A. 372, 135 I. C. (’37) A. 31 007. 

637, (’31) A. PC. 208. (X) Sobadn v. Shri Tkakur Belmrigi Mahtaji 

(d) Balambramanya Pandya Thalaivar \ Sub- (1943) All. 155, 200 I. C. 81, ('43) A. A. 87. 

bnyya Theiar (1938) 65 I. A. 93 (193S)?I (g) Jotindra Kath Boy v. Sagemlra Nath Boy 

Mad. 551 40 Bom L. 11 .704, 172 I. C. (1932) 59 Cal. 576, 584, 58 I.A. 372, 135 

724, (’38) A. PC. 34 ; Pebi Das v. Mukat I. C. 837, (’31) A. PC. 208, 271. 



62 


mXDU LAW. 


5 >. 

51,52 


anti not in thow; rimtie to hU maternal ancestors. (Dr. SarTadhikari'.s Principles of Hindu 

Law, Ist edition, pjj. 1(17-8) Apart from this, it seems to be well establi-sked that 

cakes offereti to the patttrnal ancestors are ttf superior efficacy to those offered to 
maternal ancestors. Thi.s was laid down by a Full Bench of the Calcutta High Court in 
Guru Gohirid Sliaha M'irulal v. A nand Lai Gkas‘. Maiumdnr (hi. Their Lordships must, 
therefore, hold that the oiferinga made by the respondents confer a greater sprrituai benefit 
upon the propo«(«« than thrjse made by the appellant, and that, taking this as a 
measure of propinciuity, the respondents must be held to be the preferential heir-s.” 

52. Fourth rule laid down by the Judicial Committee.— 
Batidhus ex jjarte paiernu and bandhus ex parte maternn. — It 
has been held by the High Gourt.s of ?iladras {%) and Bombay (j). 
that bandbu-s ex parte paterna {i.e., on the father's side), take 
before bandlius ex parte materna on the mother’s side). 


In Vedachela’s case {k), the Judicial Committee disapproved 
of the application of the rule where a different result would follow 
by reason of nearness in degree or superior spiriftial efficacy. In 
the case of such a conflict, the rule in this section ought not to be 
appliefl ; where there is no such conflict, or where the other rule.s 
fail to furnish a guide, this rule may be applied. This is how 
the decision in Balusatni v. Narayana (1) was distinguished 
by the Judicial Committee (m). There is nothing in the 
judgment of the Judicial Committee in that case to suggest 
that the rule of preference for bandhus ecc parte paterna is not 
to be applied in any case. On the contrary, in a later 
caSb—Jotindra Nath Roy v. Nagendra Nath ILa {n), which 
was governed by the Benares School du Law. 

their Lordships observed that that rule supported 

by a considerable volume of authority, such as Mayne (o), 
and Colapchandra Sarkar (p) who lay down the rule that as 
between bandhus of the same class and equal in degree^ one 
related on the father’s side is to be preferred to one related 
on the mother’s side, and Bhattacharya’s Commentaries which 
seem to take the same view [q). The contest in Jotindra 
Nath Roy's case was between the father’s half-sister’s son and 
the mother’s si,ster’.s .son. Both were atma bandhus in eqioal 
d^ree of propinquity to the last owner. The father’s half- 
sister s son was entitled to succeed in preference to the mother s 


(A) 

H) 


(j) 

ik) 


U) 


(1870) r, It. L. K, 15, 3». 13 Vf. R 49 (F.iJ.). 
Sundrammal v. Uatt^jaxffmt (1895) Id Mad. 
193 ■, flilluiumi V. SarayalM (1S97) 20 
Mad. 342. 

S(fjum y. Sarluihiv 1 1902) 20 Bom. 710, 715. 
(1922) 48 I, A. 349, 44 Mad. 753, 64 I. C. 

402, ('22> A. PC. 33. 

(1897 ) 20 JIad. 342. 


(ra) 

(n) 

(oj 

(J>) 

(?) 


(1922) 48 [. A. 349, 339, 44 Mad. 753, 701 
<62. 04 I. C. 402. (’22) A. PC. 33, supra 
(1931) 38 I. A. 372, 59 Cal. 676, 13S I. C 
637, ('31) A. PC, 266. 

Hindu I,aw, 9tli cd., sec. 579. 

Hindu Xaw, 7th edition, p. 574. 

Edition, 450. 



MITAKSHAEA SUCCESSION. 


63 


sister’s son, if the rule of preference of bandhus ex parte paterna 
were to be applied. He was also entitled to succeed if the 
test of spiritual ef&cacy were adopted. Their Lordships, 
however,* thought that “ the safer test” was that of spiritual 
efficacy, and decided on that ground in favour of the father’s 
half-sister’s son. • 

In Jotindra Nath Hoy s case (r) the Judicial Committee said : “ It may well be that 
the application of a rule of general preference in the case of bandhus of those claiming 
ex parte paterna, will, in the majority of cases, produce the same result as the test of 
religious efficacy of oSeririgs, but their Lordships think that, in adopting the latter. . . . 
they are on surer ground, and are following the precedent of previous rulings of this Board. 
There may be cases in which this rule (that is, the rule of spiritual efficacy) will leave 
the question still undecided, and in which the other rule (that is, the rule of preference of 
bandhus ex parte paterna) may have to be considered, but this is not so in the present case.” 

lu the light of the two decisions of the Judicial Committee, the decision of the Madras 
High Court in Sundahimmal v. Rangasami («) must be regarded as overruled. But the 
decision in Balusami v. Narayana (() is still good law. The actual decision was arrived at 
by the application of the principles (I ) The nearer line excludes the more remote and (2) 
Bandhus ex parte paterna are preferred to the bandhus ex parte materna. Neither com- 
parison of degrees nor of spiritual efficacy gives a different result. It is submitted that the 
decision is correct though different reasons might have been given. 

Thus the fourth rule approved by the Judicial Committee is 
that bandhus ex parte paterna are preferred to bandhus ex parte 
materna. This rule must be applied only after the first three 
rules fail t^urnish a guide. 

53. rules laid down by the High Courts— (^) 

Lea^ing tStS^se of descendants as settled for all practical 
purposes (s. 50A) on the principle that the nearer line excludes 
the more remote, the further question arises whether it can 
be applied as between collaterals of different lines. The 
question is of great practical importance and may frequently 
arise, among atma bandhus. We have already seen (s. 49) 
that atma bandhus who are not descendants may be divided 
into (1) Father’s cognate descendants or father’s line ; 

(2) Maternal grandfather and descendants of maternal 
and paternal grandfathers. The lines of the grandfathers, 
being equal in degree, may be regarded as one line. 

When the rival claimants belong to these two different 
lines, the question arises whether the principle that the nearer 
line excludes the more remote applies to them. Where the 


(r) (1032) 59 Cal. 570, 58 I. A. 372, 135 I.C. 637, 
('31) A. PC. 268. 


(«) (1805) 18 Mad. 193. 
(0 (1897) 20 Mad. 342, 



64 


HINBTJ LAW. 


claimauts are equally removed from the propositus, it is rea- 
sonable that the rule should appl 3 L But, suppose the claimant 
in the nearer line is more remotely removed than the claimant 
in the remoter line as in the following diagram : ‘ , 

s F 


d s s 


owner 



In such a case who is the preferable heir ? Though the actual 
point has not arisen before the Madras High (^ourt, the trend 
of the decisions is in favour of holding that the nearer line 
excludes the more remote («). 


A contrary decision has been arrived at in the Patna High 
Court, where the rival claimants ate as in the following diagram : 


s F 

M F. 

owner 



It was held by a majority of three that the maternal uncle 
is entitled to succeed (u). The point has not arisen before the 
Judicial Committee or the other High Courts. The Allahabad 
High Court has touched upon it but left it open as it did not 
arise for decision (te). 


(3) All other considerations being equal, the claimant 
who is separated by only one female link is to be preferred 
to one who is separated by two such links lx). Another mode 
of expressing it is that two steps in cognateness are inferior 
to only one step in cognateness and one in agnateness (y). 


(u) 

(») 

(ic) 


lialueami v. ^anii/ana (1897) 20 Mad. 34 ; 
Kalimutku v. Animamvthu (1935) 58 Ma 
238, 240, 153 l.C. 107, ('34) A.M. 611. 
V MQ. Shankar v. Msgt. Kage^hiari (191 
3 Pat. L.J. 063, 48 l.C. 625, (‘18) A P 
Sobadri v. Shri Thakur Bekariji Mahar 


(1942) A. L. .T. 732, (1943) All. 155, 200 
l.C, 81, (’43) A. A, 87. 

(x) Tintmalac/mnar v. Andul Animal (1907) 
30 Mad. 400. 

(V) liami HffUli v. iiangi lieddi (1925) 48 Mad. 
7*22 R7 Tr » «f Qf^-, 



MITAKSHARA SUCCESSION. 


65 


It has thus been held that a daughter’s son’s son is to be preferred to a daughter's 
daughter's son ( 2 ). The mother’s brother’s son is preferred to mother’s sister’s son in 
Madras (a) and Allahabad (6). The Bombay High Court refused to follow the above 
rule and held that both were entitled to take equally (c). The decision seems to be of 
doubtful authority and, it is submitted, requires reconsideration. If it is supported on any 
doctrine peculiar to Bombay, it has to be confined to Bombay, Following the same rule 
it has been held by the High Court of Allahabad (d), that the father’s father’s daughter s 
son's son [s. 54, no. 23 at p. 67] is to be preferred to the father’s daughter' i daughter's 
son [s. 54, no. 7 at p. 66]. It is submitted that this case was erroneously decided. It 
was decided before the decisions of the Judicial Committee in Vedachela v. Subramania ie) 
and Jatindranath Roy v. Nagendranath Roy (/). The rule in this paragraph should not 
be applied before the earlier rules have been tested. Only when they fail to furnish 
a guide, should we proceed to this rule. If we apply the test of nearness in degree laid 
down by the Judicial Committee, the result would be different. 

5 3 A. A summing up of the rules as to the order of suc- 
cession among the male bandhus has been attempted by the 
Madras High Court {g). They are to be applied in the order 
in which they a#e stated. The rules are ; — • 

(1) Atma bandhus succeed iu preference to pitri ban- 
dhus and matri bandhus. 

(2) & {3) Among atma bandhus the nearer line excludes 
the more remote. This is sub-divided into — 

(2) descendants are preferred to ancestors and 
collaterals ; 

(3) father’s descendants take before the descendants 
of grandfathers. 

(4) Pitri bandhus succeed before the matri bandhus. 

( 0 ) Among the bandhus of the same or equal lines, the 
nearer excludes the more remote. If Rule 5 is to be applied 
before Rule 3, the decision in Uma Shankar v. Nageshivari 
(1918) 3 Pat. L. J. 663, 48 I.C. 625, (T8) A.P. 1 {vide S. 53) 
would be correct. But if Rule 3 is to be first applied it is 
incorrect. 

(6) If the rule of nearness in blood fails to furnish a guide, 
he who confers a superior spiritual benefit is preferable to one 
who confers an inferior spiritual benefit or none. 


( 2 ) (1907) 30 Mad. 406, supra. 

(а) (192;')) 48 Mad. 722, 87 I.C. 009, ('25) A. M. 

807, supra ; Appandai v. Bagu Bali 
(1910) 33 Mad. 439, 5 I. C. 280, must be 
regarded as overruled. 

(б) Barn Charan Lai v. BahUn Baksh (1910) 38 

All. 416, 34- I.C. 108, (’17) A A. 48G. 

(e) Bajeppa v. Gangappa (1923) 47 Bora. 48, 77 
I.C. 219, (’22) A.B. 420. 

o 


(d) Sham Dei v. Birbhadra Praskad ( 1921) 43 

All. 463, 62 I.C. 432, (’21) A.A. 178. 

(e) (1922) 48 I.A. 349, 44 Mad. 753, 64 I.C. 402. 

(’22) A, PC. 33. 

(/) (1931) 58 I.A. 372, 59 Cal. 576, 135 I.C. 037, 
(’31) A. PC. 208. 

(j 7 ) KalimuUiu v, Ammamuthu (1935) 58 Mad. 
238, 246, 153 I.C. 107, (’34) A.M. 011. 


Ss. 

53,53A 



66 


HINDU LAW. 


Ss. 

53A'54 


(?) When all the above rules do not work, bandhus 
ex parte paterna are preferred to bandhus ex parte materna. 

(<S) All other things being equal a claimant who is related 
to, the propositus through the intervention of two femajes is to 
be'pOstponed to one who is related through the intervention of 
only one female. 

53B. The last rule laid dovm by the Judicial Committee.— 

Where we come to tw'o equal claimants after the applica- 
tion of the above rules, one of whom is of whole blood and the 
other is of half blood, the former is preferred to the latter {li). 

54. Order of succession among bandhus.- — The following 
is the order of succession among bandhus [see Table on 
p. 70A below], based on rules in ss. 50 — 53A. 


I. — Atma handlms. 

Descendants- 

I. Son’s daughter's son. 

Preferred in Bombay to father’s daughter's daughter, on the principle that 
both being equally removed from the deceased, the one in the direct line 
of descent should be preferred to the one in a collateral line (s. 50A). 

^'"2. Daughter's son's son (inferior to 1 in spiritual benefit). Preferred by the 
Madras High Court to no. 3 [s. 63 (2)]. 

3. Daughter's daughter s son. ^ 

^P^efer^ed by the JIadras High Court to sister’s son in a case before the 
Act of 1929 (i), and therefore, preferable to no. 4. 
descendants are not of practical importance, 
descendant.*!. 

5. Fath'^’^ sons (^brother’s) daughter’s son. f 

6. Father’^^daugbter's (=sister's) son’s son. 

Preferred by the Madras High Court to no. 18 (j) and by the Allahabad High 
CddH to no. 27 (fc). 

7. Father's j^aughter’s daughter's son. 

Preferred by the Allahabad High Court to no. 20 (J). 

8. Father’s son’s son’s daughter’s son. 

9. Father’s son’s daughter’s son’s son. 

* 10. Father's daughter s son’s son’s son. 

II. Father’s son’s daughter’s daughter’s son. 

*12. Father’s daughter's son's daughter’s son. 

*13. Father’s daughter's daughter's son’s son. 

*14. Father’s daughter’s daughter’s daughter's son. 

14-A. Lower descendants of father who are bandhus in Madras but not in Allahabad. 
15. Mother’s father (=mat'ernal grandfather). 


{h) Jaiindranath Roy v. Nayendrunath Roy (1931) 
58 I.A. 372, 59 Cal. 57(i, 135 I.C. 037, 
(’31) A. PC. 268. 

ft) Ralimulhn v. Ammajnuthu (1935) 58 Mad 
238, 153 I. C. 107, {’34) A.M. 611. 


(j) iiMhwamt V. Rarayana (1897) 20'Madf 34^, 
348. 

(<■) DebiEasv /leftari LaZ ( 194S) All. 131, 

207 I C. 17. (’43) A.A. 177. V .. 

(/) Sabodra v. Shri Thukur liehariji Makraji 
(1943) All. 15.5, 206 I.C. 81, (’43) A.A. 87. 



MITAKSHARA SUCCESSION. 


67 


Descendants of grandfathers. S. 54 

16. Mother’s father’s son / —maternal uncle). 

He succeeds before no. 17 (w) and before no. 19 {n), 

17. Father’s father’s daughter’s (=father’3 sister’s or half-sister’s) son. 

He succeeds before no, 18 (o) and before no. 19 (s. 51). 

18. Mother’s father’s son’s son. 

He succeeds before 19. (The decision in Bombay, holding thaf both take 
equally is either doubtful or must be limited to Bombay [s. 53 (2) ] ). 

19. Mother’s father's daughter's son. 

20. Father’s father’s son’s daughter’s son (p). 

21. Mother’s father's son’s son’s son. 

22. Mother’s father's son’s daughter's son. 

23. Father’s father's daughter's son’s son. 

It is submitted that the decision in Sham Devi v. Birhhadra Prasad 
(1921) 43 All. 463 is erroneous fs. 53 (2)] (§). 

24. Father’s fath^’s daughter’s daughter’s son. 

25. Mother’s father’s daughter’s son’s son. 

26. Mother’s father’s daughter’s daughter’s son. 

27. Father’s father’s son’s son’s daughter’s son. 

28. Mother’s father’s son’s son’s daughter’s son. 

29. Father’s father’s son’s daughter’s son’s son. 

*30. Father’s father’s daughter’s son’s son’s son. 

31. Father’s father's son’s daughter’s daughter’s son. 

*32. Father’s father’s daughter’s son’s daughter's son. 

*33. Father’s father's daughter’s daughter’s sou's son. 

*34. Father’s father’s daughter’s daughter’s daughter’s son. 

35. Mother’s father’s son’s son's son’s son. 

36. Mother’s father’s son's daughter’s son’s son, 

*37. Mother’s father’s daughter’s son’s son’s son. 

38. Mother’s father’s son’s daughter’s daughter’s son. 

*39. Mother’s father's daughter’s son’s daughter’s son. 

*40. Mother’s father's daughter’s daughter’s son’s son. 

*41. Mother's father's daughter’s daughter’s daughter’s son. 

42. Father’s father’s son's son’s daughter’s son's son. 

*43. Father’s father’s son’s daughter’s son’s son’s son. 

*44. Father’s father’s daughter’s son’s son’s son’s son. 

*45. Father’s father’s son’s daughter’s daughter's son’s son. 

46. Father’s father’s daughter’s son’s daughter’s son's son. 

*47.' Father’s father’s daughter’s daughter’s son’s son’s son, 

’ *48. Father’s father’s daughter’s daughter’s daughter’s son’s son. 


^»n) Balasubrahmanya Pandya Thalaicar v 
Subbayya Te? nr (1938) 65 1. A. 93,(1938). 
Mad. 551, 40 iJom. L. R. 704, 172 1. C. 724, 
(’38) A. PC. 34 ; Sakharam v. Bala- 
krishna (1925) 49 Bom. 739, 94 I. C. 
817, (’25) A. B. 451, must bo regarded as 
overruled; Viranganda Lingangaxida v. 
Yelappa Shidappa (1943) Bom. 259, 205 
I.C. 328, (’43) A. B. 56. 

(n) Mohandas v. Krishnabai (18S1) 5 Bom. 597. 


(o) Ademmav. Ilanuman Reddi (1938) Mad. 

260, (’37) A. M. 967. 

(p) The decision in Sundarammal v. Rangasatni 

(1895) 18 Mad. 193, must be regarded as 
overruled. 

iq) Unitei Provinces Throngh Deputy Com.' 
missioner llar-toi v. Kanhaimbil Or? 
(1941) 16 Luck. 551, 192 I.C. 131, (’41) 
A, O. 337. 



68 


HINDU LAW. 




*49. Mother’s father's son's son's son’s son's son. 

50. ^totlier's father's son’s son's daughter's son s son. 

*51. Mother’s father’s son's daughter’s son's son's son, 

*52. Mother's father's daughter's son's son's son's son. 

*53. Mother's father's son’s daughter’s daughter's son's son. 

54. Mother's father’s daughter's son's daughter’s son’s son. 

*55. Mother’s father’s daughter’s daughter’s son's son’s son. 

*56. Mother’s father's daughter's daughter’s daughter s .son s son. 

*56-A. Seven descendants of father's father, a degree lower (sons of nos. 42-48). 

*5fi-Ii. Ei^ht descendants of mother's father, a degree lower (sons of nos. 49-56). 

* These are held to he heirs in Madras but are held not to be heirs in Allahabiul 
according to Gajadharpraaad' h. ea.se. 

According to the Patna view no. 15 will come between no. 3 and no. 4 : no. 1(* 
between no. 5 and no. 6 ; nos. 17, 18 and 19 between no. 8 and no. 9. 

Xo. 28 is placed above Xos. 29 to 35 on account of his spiritual efficacy. It must 
be admitted that the result is highly anomalous, ll is futile to discuss it unles.s the case 
actually arises. 

II. — Pitri handhm. 


1. Father's maternal grandfather. 

2. Father’s maternal grandfather's son. 

3. Father's paternal grandfather's daughter's son. 

4. Father’s maternal grandfather's son's son. 

5. Father's maternal grandfather's daughter's son. 

6. Father's paternal grandfather's son’s daughter's son. 

7. Father's paternal grandfather’s daughter's son's son. 

8. Father's maternal grandfather's son's son’s son. 

9. Father’s paternal grandfather's daughter's daughter's son. 

KK Father’s maternal grandfather's son's daughter’s .son. 

11. Father's maternal grandfather’s daughter's son's son. 

12. Father’s maternal grandfather’s daughter's daughter's son. 

13. Father’s paternal grandfather's son's son's daughter's son. ^ 

14. Father's paternal grandfather’s son’s daughter's son's son. 

15. Father's paternal grandfather’s daughter’s son's son’s son. 

10. Father’s maternal grandfather's son's son’s sou’s son. 

17. Father's paternal grandfather’s son’s daughter’s daughter's son. 

18. Father’s paternal grandfather's daughter's son's daughter's son. 

19. Father’s paternal grandfather’s daughter’s daughter’s son’s son. 

20. Father’s maternal grandfather's son's son's daughter’s son. 

21. Father’s maternal grandfather’s son's daughter’s son's son. 

22. Father’s maternal grandfather’s daughter's son’s son’s son. 

23. Father’s paternal grandfather s daughter's daughter’s daughter's son. 

24. Father’.s maternal grandfather's son’s daughter's daughter's son. 

25. Father's maternal grandfather’s daughter’s son's daughter’s son. 

20. Father’s maternal grandfather’s daughter’s daughter’s son’s son. 

27. Father s maternal grandfather’s daughter’s daughter’s daughter’s son. 

28. Father s paternal grandfather’s son’s son’s daughter’s son’s son. 



MITAKSHARA SUCCESSION. 


69 


29. Father’s paternal grandfather’s sons daughter's son’s son’s son. 

30. Father’s paternal grandfather's daughter’s son’s son’s son’s son. 

31. Father’s maternal grandfather’s son’s son’s son’s son’s son. 

32. Father’s paternal grandfather's son’s daughter’s daughter’s son's son. 

33. JJathTer’s paternal grandfather’s daughter’s son’s daughter’s son’s son. 

34. Father’s paternal grandfather’s daughter’s daughter's son’s son’s son. 

35. Father’s maternal grandfather’s son’s son’s daughter’s son’s son. ® 

36. Father’s maternal grandfather’s son's daughter's son's son’s son. 

37. Father’s maternal grandfather’s daughter’s son's son’s son’s son. 

38. Father’s paternal grandfather's daughter’s daughter’s daughter’s son's son. 

39. Father’s maternal grandfather's son’s daughter's daughter’s son’s son. 

40. Father’s maternal grandfather's daughter's son's daughter's son’s son. 

41. Father’s maternal grandfather’s daughter’s daughter's son’s son’s son. 

42. Father’s maternal grandfather's daughter’s daughter’s daughter's son’s son. 

43. Father's paternal grandfather's son’s son's daughter’s son’s son’s son. 

44. Father’s paternal grandfather’s eon’s daughter’s son’s son’s son’s son. 

45. Father’s paternal grandfather’s daughter's son’s son’s son’s son’s son. 

46. Father's mate^jnal grandfather’s son’s son’s son's son’s son's son. 

47. Father’s x-'aternal grandfathers son’s daughter’s daughter’s son's son’s son. 

48. Father’s paternal grandfather’s daughter’s son’s daughter's son’s son’s son. 

49. Father's paternal grandfather’s daughter's daughter's son's son’s son's son. 

50. Father's maternal grandfather’s son’s son's daughter’s son’s son’s son. 

51. Father’s maternal grandfather’s son’s daughter’s son’s son’s son’s son. 

52. Father’s maternal grandfather’s daughter's son’s son’s son's son’s son. 

63. Father’s paternal grandfather's daughter’s daughter's daughter’s son's son’s son. 

54. Father’s maternal grandfather's son’s daughter’s daughter's son's son’s son. 

55. Father’s maternal grandfather's daughter's son's daughter's son’s son’s son. 

56. Father’s maternal grandfather's daughter's daughter's son's son’s son’s son. 

57. Father's maternal grandfather’s daughter's daxighter's daughter’s son’s son’s son, 

HI. — Matri bandhus. 

1. Mother’s paternal grandfather (r). 

2. Mother’s maternal grandfather. 

3. ^Mother’s paternal grandfather’s son. 

4. ^lother’s maternal grandfather’s son, 

5. ^Mother’s paternal grandfather's son's son. 

6. Mother’s paternal grandfather’s daughter’s son {s). 

7. Mother’s maternal grandfather’s son’s son, 

8. Mother’s maternal grandfather’s daughter’s son. 

9. Mother’s paternal grandfather's son’s son’s son. 

10. Mother's paternal grandfather’s son’s daughter’s son. 

11. ISIother's paternal grandfather’s daughter’s son's son. 

He is preferred to No. 17 {t). 

12. Mother’s maternal grandfather's son’s son's son, 

13. Mother’s paternal grandfather’s daughter’s daughter’s son. 

14. Mother’s maternal grandfather’s son’s daughter’s son. 

15. Mother’s maternal grandfather’s daughter’s son’s son. 

16. Mother’s maternal grandfather’s daughter’s daughter’s son. 

17. Mother’s paternal grandfather’s son’s son's son’s son. 

18. Mother’s paternal grandfather’s son’s son’s daughter's son. 


(r) Krihfinayi/a v. Pichamma (1888) 11 Mail. 
287. 

(») Adit Narayan v, Mahabir Prasad (1921) 48 
I.A. 86, 6 Pat. L. J. 140, 60 I. C. 261. 


(’21) A, PC. 53. 

(<) Chengiah v. Svbharam (1930) 58 Mad. 
L.J. 562, 128 I.C. 172, (’30) A.M. 555. 


S.54 



70 


HINDU LAW. 


S.54 


19. Mother’s paternal grandfather’s son's daughter’s son's son. 

20. Mother’s paternal grandfather’s daughter’s son’s son’s son. 

21. Mother’s maternal grandfather’s son’s son’s son's son. 

22. Mother's paternal grandfather’s sou’s daughter’s daughter’s son. 

23. Mother’s paternal grandfather’s daughter’s son’s daughter’s son. 

24. Mother’s paternal grandfather’s daughter’s daughter’s son’s son. 

25. Mother’s maternal grandfather’s eon’s son’s daughter’s son. 

26. Mother’s maternal grandfather’s son’s daughter’s son’s son. 

27. Mother’s maternal grandfather’s daughter’s son’s son’s son. 

28. Mother’s ijaternal grandfather’s daughter’s daughter’s daughter's son. 

29. Mother’s maternal grandfather’s son’s daughter’s daughter s son. 

30. Mother’s maternal grandfather’s daughter’s son’s daughter’s son. 

31. Mother’s maternal grandfather’s daughter’s daughter’s son’s son. 

32. Mother’s maternal grandfather’s daughter’s daughter’s daughter’s son. 

33. Mother’s paternal grandfather’s son’s son’s son’s son’s son. 

34. Mother’s paternal grandfather’s son’s son’s daughter’s son’s son. 

35. Mother’s paternal grandfather’s .son’s daughter’s son’s son’s son. 

36. Mother’s paternal grandfather’s daughter’s son’s son’s sifei’s son. 

37. Mother’s maternal grandfather’s son’s son’s son’s son’s son. 

38. Mother’s paternal grandfather’s son’s daughter’s daughter’s son’s son, 

39. Mother’s paternal grandfather’s daughter’s son’s daughter’s son’s son. 

40. Mother’s paternal grandfather’s daughter’s daughter’s son’s son’s son. 

41. Slother’s maternal grandfather’s son’s son’s daughter’s son’s son. 

42. Mother’s maternal grandfather’s son’s daughter’s son’s son’s son. 

43. Mother’s maternal grandfather’s dangther’s son’s son’s son’s son. 

44. Mother’s paternal grandfather’s daughter’s daughter’s daughter’s son’s son 

45. Mother’s maternal grandfather’s son’s daughter’s daughter’s son’s son. 

46. Mother’s maternal grandfather’s daughter’s son’s daughter’s son’s son. 

47. Mother’s maternal grandfather’s daughter’s daughter’s son’s son’s son. 

48. Mother’s maternal grandfather’s daughter’s daughter s daughter’s son’s son 

49. Mother’s paternal grandfather’s son’s son’s son’s son’s ton’s son. 

50. Mother’s paternal grandfather’s son’s son’s daughter’s son’s son’s son. 

51. Mother’s paternal grandfather’s son’s daughter’s son’s son’s son’s son. 

52. Mother’s paternal grandfather’s daughter’s sen’s son’s son’s son’s son. 

53. Mother’s maternal grandfather’s son’s son’s son’s son’s son’s son, 

54. Mother's paternal grandfather’s son’s daughter’s daughter’s .son's son’s son. 

55. Mother's paternal grandfather’s daughter’s son’s daughter’s son’s son’s son. 

56. Mother's paternal grandfather’s daughter’s daughter’s son’s son’s son’s son. 

57. Mother’s maternal grandfather’s son's son’s daughter’s son’s son’s son. 

58. Mother’s maternal grandfather’s son’s daughter’s son’s son’s son’s son. 

59. Mother's maternal grandfather’s daughter’s son’s son’s son’s son’s son. 

60. Mother’s paternal grandfather’s daughter’s daughter’s daughter’s son’s son’s son 

61. Mother’s maternal grandfather’s son’s daughter’s daughter’s son’s son’s son. 

62. Mother’s maternal grandfather’s daughter’s son’s daughter’s son’s son’s son. 

63. Mother’s maternal grandfather’s daughter’s daughter’s son’s son’s son’s son. 

64. Mother’s maternal grandfather’s daughter’s daughter’s daughter’s son’s son’s son . 
The above Hats are prepared on the basis of the decision and dictum in Kenari Singh's 

ease (u). But nos. 14A and 42-56B of the Atmahandus, nos. 2S o7 of the Pitribandhus, 
nos. 33-64 of the Matribandhus would be excluded by Brijmohan's case (v) and a few 
others by Onjadhirpraiad’ s case (to). 

(u) (1920) 49 Mod. 652, 95 I. C. 051, (’20) A. M. | (o) (1938) A. L, J. 670 (’SR) .A A. 443. 

881. I (10) (1932) 54 All. 098, 1381.0.301, (’32) A.A. 017. 



MITAK3HARA SUCCESSION. 


71 


55. Bandhus who are descendants of remoter ancestors. — S. 55 
The bandhus for whom the order of succession is given in 
sec. 54, are all descendants of the great-grandfathers, the 
grandfathers and father of the propositus and of the propositus 
himself. It is necessary to consider the position in regard 
to the descendants of ancestors higher than the great-grand- 
fathers, vide chart on page 70A. The first question that 
arises in respect of such bandhus is whether they fall under 
the heading Pitri bandhus and Matri bandhus or have to be 
classified into other classes. The importance of such a 
question may be illustrated thus : — Suppose the two rival 
claimants are (1) a descendant of mother’s father’s father 
and, therefore, admittedly a matri bandhu, and (2) a 
cognate descendant of father’s father’s- father’s father. If 
the latter must be regarded as a pitri bandhu he will be preferred 
to the former according to the decision in Muthusami v. 
Miithukumarasami (x). But it will be noticed that he is 
descended from an ancestor higher than the ancestor through 
whom the first claimant traces descent and he does not 
appear among the pitri bandhus mentioned in sec. 49. If he 
falls under a different class which has to be given a different 
name such as (pitri-pitri bandhus), he, being descended from 
a remoter ancestor and not being a pitri bandhu, must yield to 
his rival. 

The question has never arisen before the Courts and may 
never arise. An instance of such a person being regarded as a 
bandhu, but without any rival claimant is that of the father’s 
father’s father’s father’s son’s son’s daughter’s son (y). Several 
judges in India have expressed the opinion that it is nob possible 
to divide all bandhus into the three classes mentioned in the 
Mitakshara [sec. 46 (4)]. The Mitakshara itself does not 
say that all bandhus fall into three classes. Like the individual 
bandhus the classes mentioned in it may be regarded as illustra- 
tive and not as exhaustive. The opposite view is stated in the 
second proposition of the Madras High Court in Mvitmami v. 
Muttukumarasam,i (z) which runs thus : “ (2) That, as stated in 
t;he text of Vridha Satatapa or Baudhayana, they are of 
three classes ” 


(I) (1.S96) 10 Mad. 405, 23 I.A 83. I Cal. 5J8. 

(y) ilanick Chand v. Jagat Settani (1890) 17 ! (z) (1893) 10 Mad. 23, 30. 



72 


HINDU LAW. 


Ss. 

55,56 


It is true that the four propositions laid down in that case 
were generally approved in appeal and in Vedachela v. Subra- 
mania [a) by the Judicial Committee. But in none of these 
cases was it necessary to deal with the question and” too much 
should not be attached to such general approval It is 
submitted that bandhus descended from the higher 
ancestors should be classed into (1) pitri-pitri bandhus, 
(2) pitri-matri bandhus, (3) matri-pitri bandhus and (4) matri- 
matri bandhus and similarly for descendants of remoter ances- 
tors {h). It is on the assumption that all bandhus fall into three 
classes that some of the reasoning of the Allahabad High Court 
in Gajadhar Prasad v. Gavri Shankar (c) is based. 


56. Female bandhus in Bombay and Madras. — The 
bandhus mentioned in sec. 54 above are tall males. The 
Mitakshara nowhere expressly mentions female bandhus. 
The nine instances there given are all instances of male bandhus. 
The Benares and Mithila schools follow the strict letter of 
the Mitakshara, and do not recognize females as bandhus. 
In Bombay and Madras, however, certain females are recognized 
as bandhus. 


Every female other than the daughter in Madras, and 
other than the daughter, .sister and father’s sister, in Bombay 
who rank above bandhus, who, if she were a male, would have 
been an heir, that is, who is related to the propositus by birth, 
mthin the limits of degrees for bandhus is regarded as a heritable 
bandhu. The following are instances : — 


IN BOMBAY. 

Brother’s daughter (d). 

Sister’s daughter (e). 

Paternal Uncle’s daughter (/). 
Paternal grandfather’s sister’.s. 
son’s daughter [g). 


IN MADRAS. 

Brother’s daughter {h). 
Brother’s son’s daughter (i). 


(«) 

w 


<C) 

(d) 


(1022) 48 I. A. 3-19, 359, 4-t Mad. 753, 94 I.C 
402, ('22) A. PC. 33. 

JJimahankar v, Mmsamat yagestoari (1918) 
3 Pat. L. 1. 603, 48 l.C. 625, ('18) A V. 1 
Haim KedAy v. Cangi Itedtly (1925) 48 Mad! 
722, 87 l.C. 609, ('25) A. M. 807, 809, 810* 
Kahviulhu v. Ain-,niimuthu (1035) 58 Mad’ 
238, 153 l.C. 107, (’.34) A.M. 611. 

(1932) 54 AH. 698,’ 13$ I C. 501. {'32) 
A.A. 417. 

Balkrvilma v. liamkrUhna (1921) 45 Bom 
353, 59 l.C. 771, (’21) A B 189. 


(«) DuHatreya v. Gangabai (1922) 40 Bom. 541. 

(/) Kenchava v. Girimalappa (1924) 51 I. A. 
368, 48 Bom. ,'j69, 82 1. C. 900, (’24) 
A. PC. 20 (postponed to father’s shtcr’s 
fiop). 

(jf) liui Vijili V. Bai Prabhaiakshmi (1907) 9 
Bom. B. 11 . 1129. 

(k) Venkatasubramamam v. Thayarammah 
(1898) 2 Mad. 203. 

(i) Jagunnaihan v. Adilafcsfimi (1940) Mad. 734, 
(•4U) A. M. 545. 



' MITAKSHAEA SUCCESSION. 


73 


Under the Hindu Law of Inheritance (Amendment) Act 
2 of 1929, the son’s daughter, the daughter's daughter and the sister 
inherit with gotraja sapindas, the son’s daughter succeeding 
immediately after the father’s father, the daughter’s daughter 
next after her, and the sister next after the daughter’s daughter : 
see sec. 43, nos. 13A, 13B and 130. In Bombay, the sister 
had a higher place even before the Act and retains it. As to 
half-sister, see sec. 43, 130 (2). 

The female relations mentioned above are regarded as bandhus on the ground that 
“ any relative who is also a cognate may be treated as coming within the definition of 
bhinna gobra sapinda, and that the term ‘ sapinda,’ as used in chap, ii, sec. vi, of the 
Mitakshara, includes females” { j ). 

In Madras such females come after all the male bandhus (ik). For the order iu 
Bombay see sec. 74. Amongst themselves they succeed in the order of propinquity, 

'S 

56A. Heirs of an illegitimate son.^ — When the illegitimate 
son of a woman dies leaving his mother but no nearer heirs, she 
is entitled to succeed as heir in accordance with the general 
principles of Hindu Law ( 1 ). The illegitimate sons of a prosti- 
tute, though by different fathers, are entitled to succeed to 
each other. Similarly, the legitimate son of one of such sons 
is entitled to succeed to them, and also to their legitimate 
sons (w). So if A and B are son and daughter of a woman 
living in adultery and A dies leaving B but no legitimate heirs, 
B is entitled to succeed to A (n). 

In the Madras case (o) on which the present section is based Bevadoss, J,, said: 
“ It is a misnomer to call the son of a dancing woman, whose paternity is unknown, 
an illegitimate son. The illegitimate son is one born out of wedlock, z.e., no 
marriage was solemnized between the father and the mother. In the case of sons of 
prostitutes or dancing women the paternity is unknown and it is only an euphemism 
to call them illegitimate sons. In Roman law they are called Nullius Filius, Dancing 
women have their peculiar customs. Their status is recognized in Hindu society. 
Their customs have received the sanction of judicial decisions and the adoption of girls 
by them is recognized by law, and the daughters of dancing women inherit in preference 
to their sons.” 


The illegitimate son being an heir to his jaiher, the father also is an heir to him 
provided, of course, the illegitimate son dies without leaving any issue, widow or 


mother (p). 


(j) Balammay. PuUayya (1895) 18 Mad, 168, 
170. 

(i) NarasimJia v. Mangammal (1890) 13 Mad. 
10 : Rajah Venl’ata v. Rajah Suraneni 
(1908) 31 Mad. 321. 

(i) Jagarnath Gir v. Sher Bahadur Singh (1935) 
57 All. 85, 153 I.C. 1078, (’35) A.A. 329. 


(m) Fisujanat/ia v. Doraf«Ufamx (1925) 48 Mad. 

944, 91 I.C. 193, (’26) A.M. 289. 

(n) Vattalreya v. Matha Bala (1934) 58 Bom. 

119, 114 I.C. 821, (’34) A, B. 36. 

(o) (1925) 48 Mad. 944, 916, 91 I.C. 103, (’2r.> 

A.M. 289, supra, 

(j>) Satratnania v. Rathnniclu (1918) 41 Mad. 
44, 42 I.C, 056, (’18) A.M. 1346 [F.B.]. 


Ss. 

56,56A 



74 


HINDU LAW. 


Ss. 

57-^9 


57. Preceptor, disciple and fellow-student. — In default of 
kindred, the property of a deceased Hindu, even though 
he be a Sudra, passes to his preceptor ; if there be no 
preceptor, to his disciple ; and if there be no disciple, to his 
fellow-student. In determining who is a preceptor, a disciple 
or a fellow-student, the Court will only consider the imparting 
of purely religious instruction (q). 

Mitakshara, ch. 2, see. 7. In tke Madras case referred to above, it was held that 
the disciple of an ascetic Sudra, who left no kindred, was entitled to succeed to his estate 
so as to prevent its escheat to Government. 

58. Hermits and members of religious orders. — The heir 
to the propert}' of a hermit (Vanaprastha) is his spiritual 
brother belonging to the same hermitage, to that of an 
ascetic (Sanyasi) a virtuous pupil, and to that of a student 
in theology (Bramachari) his religious p^receptor. These 
heirs are entitled to succeed preference to the kindred of the 
deceased. This rule applies only to members of the twice- 
born classes. It does not apply to Sudras unless some usage 
or custom to that effect is proved (r). 

Mitakshtira, ch. 2, sec. 8 ; see sec. 113 below. The heirs mentioned in sec. 57 are 
not entitled to succeed except in default of kindred. The present section deals 
exclusively with succession to the property of members of religious orders who belong 
to the twice-born classes. Sanyasls are members of the twice-born classes (s). The heirs 
enumerated in this section are entitled to succeed in prioriti/ to the kindred of the 
deceased. 


59. Escheat. — (2) On failure of all the heirs mentioned 
above, the Crown takes by escheat (t). Where the Crown 
claims by escheat, the onus lies on the Crown to show that 
the last proprietor died without heirs (u). 


(2) An estate taken by escheat is subject to the trusts 
and charges, if any, previously affecting the estate (v), e.g., 
mainteii.mce of widows (w) and mortgages created by a widow 


(4) 

(r) 


xinjji.rijimm V. fserrelurii oj Suite for Indi 
{iy2l) 44 Mad. 704, 03 I. 050, (’21 
A.M. 537. 

Bnuulas Jialdenlaxji (li)l5) .39 3Wm. lOf 
20 I.C. 007. (’14) A. B 110 [l^nya‘>il 
Dhnrvvipuruvi v. FVcfpanrftj/aw (1899) 2 
Mad. 302 [Sudra] , Collrctor of Dacca y 
Jaijat Chiindert f'al. 008 [claim c 
preccptdir’a preceptor allowed an prove 
bv ciistom]; Huriv Chandra v Afi 
Mahomed (1913) 40 Cal, 54.5, 18 I.C. 47 
[Sudra] Soimmndarum VaUlnLinii 
(1917) 40 Mad. 840, 41 I.C. 540, (’If 
A.M. 794 [SUfJra] ; Bobhaddi v. Gobin 
All. 016, 80 I. C. 579, ('2. 


(«) (lyif)) 30 Bom. lOB, 174, 20 I.(’. 607, (’14) 
A.B. 110 , supra. 

(0 Collpctnr of Mixivlipatam v Caialq Vetikala 
(1800)8 M.I. A. 500. 

(k) Gri'ihari Lull v. Jipnqal Gojernmcnl (1608) 
12 M.l.A. 448, 10 W. ]t. (P.C.) 52. 
Ganpat v. Sreretary of State (1021) 4.5 
Bom. JiOO, 1110, 02 1. \ 109, (’21) A.B 
138 ; United Provinces* tlirnuch Deputy 
Comrniss-lofier Bardoy v. Kanhawitilal tL' 
Ots. (1941) 16 l.uck. 551, 102 I.C. 131, 
( 41) A. 0.337. 

(f) (1800) 8 M.I.A. 500, 527, hupra. 

(w) Golah Koonumr\ Collector of lienares 
4 M.T.A. 240, 258. 



MITAKSHARA SUCCESSION. 


75 


for legal necessity (x), but not to unauthorized alienations by 
widows (y). 

Succession after Reunion. 

60. Order of Succession among reunited members. — 
In Madras, it has been held that the share of a reunited member 
survives to the other members of the reunited family like 
the share of a member of a normal joint family (z). * 

In Calcutta the opinion has been expressed that the principle of survivorship applies 
to reunited coparceners (a). 

The Madras High Court has expressed the opinion that a reunited son has a 
preferential right of inheritance to one who remains separate (b). 

The following is the order of succession according to 
Viramitrodaya: 

(1-3) Son, grandson and great-grandson ; 

(4) reunited whole brother ; 

(5) reunitjd half-brother and separated full-brother (c) ; 

(6) reunited mother ; 

(7) reunited father ; 

(8) any other reunited coparcener ; 

(9) half-brother not reunited ; 

(10) mother not reunited ; 

(11) father not reunited ; 

(12) widow ; 

(13) daughter ; 

(14) daughter’s son ; 

(15) sister. 

Subject to the above, the succession goes to the sapindas, 
samanodakas and bandhus in the order and according to the 
rules set forth in secs. 43, 45 and 50 (d). 

As to reunion, see secs. 34-2-344, 

The order of succession, according to the Smriti Chandrika, is as follows : (1) son, 

grandson, great-grandson, (2) reunited full-brother, (3) separated full-brother, (4) reunited 
half-brother, (5) reunited father or paternal uncle, (6) separated half-brother, (7) father, 
(8) mother, (9) virtuous widow, (10) sister, (11) sapindas, and (12) samanodakas. 

According to the Mayukha, the reunited member has in every case preference over 
the unreunited. But when there are separated full-brothers and reunited half-brothers, 
uncles and the like, the separated full -brother, etc., takes equally with the reunited 
half-brother, etc. After the brother, the mother takes, then the father, then the widow, 
then the sister, then the daughter, and after her the nearest sapinda. 

See Ghose’s Hindu l aw, 3rd ed., pp. 625-626. 


(x) Cavaly Venkata v. CoUector of ^^as^ihpatam 
(1867) 11 M.I.A. 619, 

(ij) (1800) 8 M.T.A. 500, .527. supra. 

(z) Samudrala v. Samudrala (1910) 33 Mnd, 
165, 3 r.C. 741. 

(rt) Jasoda v. Sheo (1890) 17 Cal. 33; Sham 


V. Court (1873) 20 W.R. 107. 

(6) Nana v. Ramchandra (1909) 32 Mad. 377. 
382, 383, 2 I.C. 519. 

(c) Ranasatm v. Venkatesani 16 Mad. 

440. 

(d) Sarkar'p Hindu Law, 7th ed., p. 587. 


Ss. 

59,60 


i*- 



76 


Ss. 

. 61, 61A 


CHAPTER V. 
FEMALE HEIRS. 


61. Female heirs; Bengal school. — According to the 
Bengal school no female could inherit to a male unle.ss she is 
expressly named as an heir in the texts. The result is that 
the only females recognized as heirs in that school are 
(1) the wddow, (2) the daughter, (3) the mother, (4) the father's 
mother, ’and (5) the father's father's mother (e). 


61A. Female heirs; Mitakshara school. --{7) Before the 
Hindu Law of Inheritance (Amendment) Act. 1929, the onlv 
females recognized as heirs in the Benares (/) and ^lithila 
schools were (1) the nddow', (2) the daughter, (3) the mother, 
(4) the father's mother, and (5) the father's father's mother. 
The exclusion of other females was founded on a text of Bau- 
dhayana which says : Women are devoid of the senses, and 
incompetent to inherit '' ig). Accordingly it has been held 
in Lahore that a sister's son's daughter is not an heir (/i). 

Neither the Madras nor the Bombay school follow the text 
of Baudhayana. These schools follow the text of Manu which 
says: “ To the nearest sapinda the inheritance next belongs 
and they interpret the word sapinda ” to include females 
also (i). On that interpretation the Madras school has held 
that the brother’s daughter, sister’s daughter, brother’s son's 
daughter and father’.s sister are also heirs in the Madras Presi- 
dency [sec. 56]. The Bombay school has gone much further, and 
it includes in the list of female heirs not only the heirs recognized 
iu the Benares, Mithila and Madras schools, but also wddows of 
gotraja sapindas [sec. 68j. The recognition of widow’s of gotraja 
sapindas as heirs in Bombay has been placed by the Privy 
Council on the ground of usage {j ). But the uddow's of bandhus 
are not recognized as heirs anj’w’here ; for instance, a sister s 
son’s widow [h). 


^ (2) Under the Hiiidii Law of Inheritance (Amendment) 

Art, 1929, which came into force on the 21st Pebruary 1929, 
the son’s daughter, the daughter’s daughter, and the sister 
(S. 43-13 A to 0) rank as heirs in all parts of British India where 


• 7 ) 


<71 


Gobmd v. Anand Lai 5 IWr' 

L.E. 15, 37 [F.B.l. ' 

Jd'jan Vat/, v, Champa (lOW) 2A AV. 307 - 
.tfr/maji Krishna v. Bhaltfa-liajfndra nO'Vl 
2 Lurk. 43. 104 I,C. 165, (•27) A.O ‘Lilt ■ 
Jaaq Bit ’v. Jamria (1031* 12 lah’ 
534, 135 _I.C, 663. {'3-2) A, L, 37 (ai.ter 
not a.i hfcii], 

Lailuf/hoy v, CmOai (ISSO) 5 Bom. no. 


118, 7 I. A. 212, 231. 

Itamakuiar v. ilst. (lanavaii Dfri (1937) 
Las. 525, 108 l.C. 753, ('38) A.L. 652. 
Balamim v. PuOatnja (1895) 18 Had. 108. 
1 * 0 . 

(1880) 5 Bom. no, 7 I.A. 212, 237, »Mpra 
ItamahviaT v. Mil. Ganapali Bern (1937) 
Lall. 525, 166 l.C, 753, (’36) A.I.. 652. 



FEMAXE HEIES. 


77 


th.eMitalcsliara Zawprevails. Before the Actthey ranked as heirs 
only in the Bombay [s. 56 (I)] and Madras [s. 55] Presidencies. 

Before the Act, both the son’s daughter and the daughter’s 
daughter ranked as bandhus in Bombay and Madras. Under 
the Act? however, they both inherit as gotraja sapindas [s. 43, 
nos. 13A and 13B]. As regards the sister, she succeeded in 
Bombay immediately after the paternal grandmother, and in 
Madras she succeeded as a bandhu. As regards her place in 
the order of inheritance in Bombay, the Act effects no change, 
and she will .succeed immediately after the paternal grand- 
mother as she did before the Act [s. 65]. In Madras, however, 
she will, since the Act, succeed immediately after the daughter’.s 
daughter [s. 43, no. J3C]. 

62. Female heirs in Benares and Mithila. — The only 
females recognizeff as heirs in the Benares and Mithila schools 
before the Hindu Law of Inheritance (Amendment) Act of 1929 
were (1) the widow, (2) the daughter, (3) the mother, (4) the 
father’s mother, and (5) the father’s father’s mother. No other 
female was recognized as an heir Q). Under the Act, the son’s 
daughter, the daughter’s daughter, and the sister also rank as 
heirs [s. 43, nos. 13A, 13B and 13C]. 

63. Female heirs in Madras, — The Madras school 
recognizes not only the widow, daughter, mother, father’s 
mother, and father's father’s mother as heirs, but also the 
females mentioned in sec. 56 above. This includes the son’s 
daughter, daughter’s daughter aiid sister who are now expressly 
named as heirs in the Hindu Law of Inheritance (Amendment) 
Act 2 of 1929, see sec. 6lA above. The Madras school does 
not admit the widows of gotraja sapindas as heirs (w). 

64. Female heirs in Bombay. — The Bombay school 
recognizes not oiily the widow, daughter, mother, father’s 
mother and father’s father’s mother as heirs, but also the 
following females ; — 

(i) Sister, whether of the whole or half-blood. The 
sister is considered a sapinda by virtue of her affinity 
to her brother. She is also considered a gotraja sapinda as 
having been born in her bother’s gotra or familv (n) [s. 65]. 


(/) Tiralh Ram v Mat. Kahan Devi (1920) 1 
Lali. 588, 598 591, 60 I.C. 101, (*21) 
A L 149 ; Mst Sujan Deii v. Jmin Mai 
(1920) 1 Lah. 608, 59 124, (’20) A.L. 

511 

(7?a) Balamma v Pullava (1895) 18 Mad. 188 


[widow of great-grandson of great- 
grandfather of the deceased not an licir] 
KanaLammal v. Ananthamathi (1914) 37 
Mad 298, 25 T. C. 901. (’15) A M. 18 
[brother’s widow not nn heir] 

(n) Kesserbai v. Valab (1880) 4 Boin ^ ^3. 


Ss. 

61A.64 



78 


HINDU LAW. 


S. 64 


Half-sisters succeed as much as sisters of the whole blood 
[s. 66]. The sister is now expressly mentioned as an heir in 
the Hindu Law of Inheritance (Amendment) Act 2 of 1929 
[s. 43 {13 C)]. 

The Mayukha expressly names the sister as an heir. The Mitakshara does not 
name the sister, but certain commentators of repute, such as Balambhatta and Nanda 
Pandita, Slay that in the term brothers ’ whom the M-itakshara does name, sisters are 
included (o). She is also expressly mentioned as an heir in Niikhantha’s Commentary. 

The paternal uncle’s daughter is not a gotraja sapinda (^), but a bandhu [s. 56]. 

(2) Father s sister, whether of the whole or half blood. — 
See s. 74. 

(3) Widoivs of predeceased gotraja sapindas, that is, of 
sapindas and samanodakas (g), but not widows of bandbus 
or bhinna-gotraja sapindas (r). Thus the son, the father, the 
brother, the brother’s son, the paternal uncle, the paternal 
uncle’s son, are all gotraja sapindas of the deceased. There- 
fore, according to the Bombay decisions, the son’s widow (s), 
the step-mother (father’s widow) {t), the brother’s widow (m), 
the brother’s son’s widow {v), the paternal uncle’s widow (tv), 
and the widow of the paternal uncle’s son (x), are all sagotra 
sapindas of the deceased, and inherit as such. These widows, 
being sagotra sapindas, inherit necessarily before the bandhus. 
The above list is not exhaustive, but merely illustrative. See 
sec. 68. 


The widows of gotraja sapinclaa arc rccoguizeil as heirs in the Bombay Prcbiclcncy 
only. They were not regarded as heirs clbcwherc (y). Act XVIII of 1037 now makes 
the widow of a predeceased son and the widow of predeceased sous predeceased son heira 
throughout India except under the Bayabhaga Kehool. 

A gotraja sapinda is one born in the got ra or family of the deceased. The expres- 
sion sagotra sOrpinda means of the same gotra and includes females that enter the gotni 
of the deceased by marriage. 


(4) Female bandhus mentioned in section 56 above . — These 
include the son’s daughter and daughter’s daughter, both 
of whom are now expressly mentioned in the Hindu Law of 
Inheritance (Amendment) Act 2 of 1929. But they now 
inherit with gotraja sa pindas [s. 43, nos. 13A and 13B]. 




(p) 

(?) 


(O 

(») 

(0 

(“) 


204. 




Krishnabai Kpshav {1021)) 22 Bom L B 
US2, 59 I.C. 514, (’20) A.B. 237. ' ' ' 

Lallubhoy v. Cassihai (1880) G Bora. 1]0 

I v. Jayram (1809) 

o Bom. H.C. 152. 

Vullabhdas V. Sakarbai (1901) 25 Bom. 281. 
Soopchaiul V. Poolchand (1824) 2 Bor 070 
(1880) 4 Bora. 188, 208, supra 
Hahalcbani v. Uemchaml (U(85) 9 Bom. 31. 


(f) 

(u) 


{*) 

(») 


Madharram v. Base (1897) 21 Bom. 739 
Uachara v. Kalinyapa (1392) 10 Bora. 710 ; 
Itoghimath Shankar v. Lazmibai (1935) 1*9 
Bom. 417, 37 Bom. L. R. 150, 157 I. C. 
0.-.8, ('S.',) A. B. 208. 

(1880) 5 Bom. 110, 7 I. A. 212, supra. 
Anandn B%bee v. Xownil Lai (1883) 9 Cal. 
315, 317-22 ; Balamrm v. Pullayya (1895) 
18 Mad, 108 ; Thayamtnal v, Annamala 
(1890) 19'5Iad . 35 ; Kanakamiml v. Anun- 
thamalht (1914) 37 Mad. 293, 25 I.C. 901, 
(■15) A.M.18. 



FEMALE HEIRS. 


79 


65. Sister’s place as an heir in the Bombay Presidency.— 
(i) A sister is an heir in the Bombay Presidency [s. 64 (1)], 
and she inherits immediately after the paternal grandmother 
both under the Mayukha aifd the Mitakshara as interpreted 
in Bombay (z). Her place in the order of succession is not 
affected by the Hindu Law of Inheritance (Amendme;it) Act 
2 of 1929 [s. 43 {13C)'\. See s. 72 {12) and s. 77 {12). 

Both under the Mayukha and the Mitakshara as inter- 
preted in Bombay, a sister does not take before a full-brother’s 
son {a). In cases governed by the Mayukha, she takes even 
before a half-brother {b), and half-brother’s son (c), but not 
in cases governed by the Mitakshara {d). See ss. 72 and 77 
below. 

The sister takes before a paternal uncle (e)> a paternal uncle's son {f), a paternal 
uncle’s son’s son (3), oiJa more remote paternal male relative (h). She also takes before 
a son’s widow (t), a step-mother (j), a brother’s widow (k), or a paternal uncle’s 
widow (/) all of whom are widows of gotraja sapindas [s. 68]. She also succeeds in 
preference to a paternal step.grandmother (m). 

{2) Sisters take absolute estates in severalty, and not as 
joint tenants in Bombay (n). 

66. Half-sister as an heir in the Bombay Presidency. — A 
half-sister is an heir in the Bombay Presidency and she 
inherits, in cases governed by the Mitakshara, immediately 
after the full-sister (o), and in cases governed by the Mayukha 
after the half-brother {p). Her place in the order of succes- 
sion is not affected by the Hindu Law of Inheritance (Amend- 
ment) Act 2 of 1929 [s. 43 {13C)]. 

A half-sister takes before a step-mother {q)y a paternal uncle (r), or a paternal uncle’s 
widow (5). 

67. Father’s sister as an heir in the Bombay Presidency. — 
*See s. 74. 


(^) West and Bnhior, 4th eJ., 100-110 ; Venayeck 
V. Luxu meebaee (1804) 0 M I.A. 520 
. in App. from 1 Bom. H. C. 117 (,a Mayu- 
kha case] ; Lulliibai v. Manknrarbai 
(1878) 2 Bom. 388, 421, 445-446 ; KeJtserbai 
V. Valab (1880) 4 Bom. 188 ; Vithaldus v. 
Jeshnbai (1880) 4 Bom. 219, 221 ; Bhagwan 
V. Warubat (1908) 32 Bom. 300. 

(a) Mulji V. Ciirmndag (1900) 24 Bom. 563. 

(h) SakKaramv. Sitabai (1879) 3 Bom. 353. 

(f) (1908) 32 Bom. 300, supra ; Hari Annaji 
V. Vasvdev (1914) 38 Bom. 438, 441, 23 
I.C. 944, C'14)A.B. 134. 

(d) Wcat and Buhler, 4th ed., 105-100 , (19001 

24 Bom. 503, 573, 579, supra ; (1914) 33 
Bc*m. 438, 23 I.C. 944, (’14) A.B. 134, 
supra. 

(e) See Tnkam v. Naiha (1912) 36 Bom. 120, 

12 I.C. 359 [half-sister Mayukha], 


(/) (1864) 9 M I.A. 520, iu App. from 1 Bom. 

H.C, 117, supra. 

('/) Birw ■V. Khandu (1880) 4 Bora. 214. 

(A) Dhondii v. Gangabui (1879) 3 Bom. 369. 

(i) Vilhaldas v. Jesfnibai (1880) 4 Bom. 219, 221. 
0) Lakshmiv. Dada (1879) 4 Bom. 210. 

(k) Rudrapa v. Trava (1904) 28 Bora. 82. 

(/) (1880) 4 Bom. 188, supra. 

(m) Lingatigowda v. ^’u^saw;fl (1915) 17 Bom. 

L.ll. 315, 28 I.C. 588, (’15) A.B. 48. 

(«) Rindabai v. Anacharya (1891) 15 Bom. 200, 

(o) West and Biihler, 2nd ed , p. 186 ; Jana v. 

Rakhma (1919) 43 Bom. 461, 52 I.C. 8, 
(’19) A.B. 12. 

(p) (1880) 4 Bom. 188, 207-200, supra. 

(9) (1880) 4 Bom. 188, supra. 

(r) (1912) 36 Bom. 120, 12 I C. 359, supra. 

(s) (1880) 4 Bom. 188, supra. 


Ss. 

65.67 



80 


HINDU LAW. 


S.68 


68. Widows oi gotraja sapindas as heirs in the Bombay 
Presidency. — The succession of widows of gotraja sapindaa 
[sec. 64 (5)] is governed by the following rules : — 

(i) No widow of a gotraja sapinda can inherit until 

after “the compact series of heirs” [ending 

• with the brother's son (i)], nor until after the 
• sister and half-sister (u). 

(ii) Subject to the above rule and provided that there is 

no existing male gotraja sapinda within the six 
degrees of tlie line to which her husband 
belonged (v), the widow of a gotraja sapinda 
stands in the same place as her husband, if living, 
would have occupied. 

(hi) Where the contest lies between the widow of a 
gotraja sapinda representing a nearer line and a 
male gotraja sapinda representing a remoter line, 
the former inherits by preference over the 
latter {w). 

{iv) Widows of gotraja sapindas may succeed to the 
estate of a male or to that of a female. In the 
former case, they take a widow’s estate ; in the 
latter, an absolute estate [secs. 170 (2), 171 (2)]. 

(y) A Avidow who has remarried is not entitled to inherit 
as a gotraja sapinda in the family of her first 
husband {x}. But unchastity at the time when 
the succession opens is not a disqualification to 
inherit as a gotraja sapinda (y). 


The series of heirs begianiiig with the son and ending with the brother’s son is 
called “ the compact series of heirs.” No widow of a gotraja sapinda can inherit before 
any of these heirs (s). Nor can she inherit before the sister or half-sister (a). A son 
is the nearest male gotraja sapinda of the deceased owner ; therefore, the first in the 
scries of widows of gotraja sapindas is the son’s widow (h). Then comes the grandson's 
widow, and then the great-grandson’s widow. 


(J) -v. Uemcliand {188C») D Bora. 31, 

34 (note). 

(u) Vithaldus V. Jashubai (1880) 4 Bom. 210, 
22L. Xutc that the bod’s widow is the first 
in thft BcrieB of widows of <;otiaja sapindiiH. 
(i) LaU'Jjhoij V. Casiibai (1880) 5 Bom. 110, 7 
I. A. 212, in app. from 2 Bom. 388 ; 
Harhara \ . Kalingapa (1802) 16 Bom. 710, 
720 ; Kaibibm V. Moruhtoar (1011) 35 
V/)ia. 389, 11 I.C. 660 ; Btuangaidu, v. 
Bagamiaxda (1915) 39 Bom. 87, 127 I.C. 
167, (’14) A.B. 202 ; Ambatdas v. Jijtbhai 


(1912) 14 Bom. L. B. 261, 14 I.C. 979 [a 
ilayukha ea^ej. 

(w) (1802) 10 Bom. 710, 718, supra ; (1915) 30 
Bora. 87, 27 I.C. 167, (’14) A. B. 202, 
supra. 

(a5) Pranji»'an y. Bai Bhiki (1921) 45 Bom. 
1247, 03 I.C. 047, (’21) A.B. 57. 

(y) AJeoba Laxman v. Sai Qenu (1041) Bom. 438, 
197 I.C. 157, (’41) A.B. 20-}. 

{*) (1885) 9 Bom. 31, 34 (note), siijira. 

(а) (1880) 4 Bom. 219, 221, sUpra. 

(б) (1880) 4 Bom. 219, 221, 



FEMALE HEIRS. 


81 


The male next after the grcat-gandson is the daughter’s son. But he is not a gotraja 
sapinda, for he belongs to a difierent gotra or family. 

The next male is the father. The male gotraja sapindas of the deceased in his father’s 
line are his (1) brother, (2) brother’s son, (3) brother’s son’s son, (4) brother’s son’s son’s 
son, (5) brother’s son's son’s son’s son, and (6) brother’s son’s son’s son’s son’s son. The 
father’s* line begins -with the father and ends with the brother’s son’s son’s son’s son’s 
son. The father being the first in his line, the step-mother (father’s widow) is the first 
in the series of widows of gotraja sapindas in the father’s line, and she takes before 
the brother’s widow who is the second in the said series. But she is not entitled to 
inherit if. there exists any lineal descendant of the father as far as the degree, 

that is, if there be a brother, a brother's son, a brother’s son’s son, a brother’s son’s 
son’s son, a brother’s son’s son’s son’s son, or a brother's son’s son’s son’s son’s son. 
See cl. (ii) of this section. 

Suppose now that the contest is between a brother’s widow and a paternal uncle. 
The husband of the brother’s widow, that is, the brother, belongs to the father’s line 
and the paternal uncle belongs to the father’s father’s line, that is, a remoter line. The 
brother’s widow is therefore entitled to succeed before the paternal uncle. See cL (iii) 
of this section. « 

Foundation of the right of widow of predeceased gotraja sapindas to inherit . — The right 
of these females to inherit rests mainly on the ground of positive acceptance and 
usage (c). 

Illustration. 

A dies leaving a widow, a widow of a predeceased brother, and a paternal uncle. 
On A’s death, his widow will succeed to the estate. The next heir, on the widow’s death, 
is the widow of A's brother, and not the paternal uncle of A, the reason being 
that the husband of A’s brother's widow (that is, A’s brother) belongs to A’s father's 
line, while A's paternal uncle belongs to A’s father's father's line which is a remoter line. 
On the death, however, of the brother's widow, the heir to A's estate will be his paternal 
uncle. A’s widow takes a widow’s estate in her husband’s property. The brother’s 
widow also takes a widow’s estate [s. 170]. The paternal uncle takes the property 
absolutely and on his death it will pass to his own heirs. 

69. Wido-ws of samanodakas as heirs in the Bombay 
Presidency. — The -widows of predeceased samanodakas [s. 40] 
are held to be heirs in the Bombay Presidency {d). 

70. Daughters of descendants, ascendants and collaterals 
as heirs in the Bombay Presidency. — The female descendants 
of the propositus and of his ancestors are bandhus in the 
Bombay Presidency [s. 56]. 

(c) Lulloobhoy v. Cassibai (1880) 7 I. A. 212, I (<Q Lakshmibai v. Jayram (1869) 6 Bom. H. C. 

237, 5 Bom. 110, 124. I A, C. 152. 


Ss. 

68-70 



82 


CHAPTER VI. 

ORDER OP SUCCESSION TO MALES IN THE 
BOMBAY PRESIDENCY. 

Ss. 71. Succession in the Bombay Presidency. — (/) The -order 

71,72 of succession to males in the Bombay Presidency is different 
from that in other parts of British India where the Mitakshara 
law prevails. The difference arises from the fact that the 
Bombay school recognizes as heirs certain females who 'are not 
recognized as heirs in other parts of British India [ss. 64-70]. 

(2) In the Bombay Presidency itself there is a difference 
between the order of succession in cases governed by the 
Mitakshara and that in ca.ses aoverned by the Mayukha 
[s. 12 (2)]. 

72. Order of succession in cases governed by the Mitak- 
shara- — 1'he following is the order of succession to males among 
sapindas in the Bombay Presidency in cases governed by 
the Mitakshara 

1-6. Son, son’s son (whose father is dead), and son’s 
son’s son (whose father and grandfather are both 
dead). These inherit simultaneously. Under Act 
XVlilofl937 the widow, the predeceased son’s 
widow, and the widow of a predeceased son of a 
predeceased son, are also recognized as heirs. 
(See sec. 43.) 

See notes to s. 43, nos. 1 — 3 and 4. 

" 7. Daughter — 

.See s. 43, no. 5, notes (1), (5), (6) and (7). 

In the Bombay Presidency, daughtci^ do not take as joint tenants 
Avith benefits of survivorship, but they take as tcnants-in-common. 
Further, a daughter in that Presidency does not take a limited 
estate in her father’s property, but takes the property absolutely. 
Thus if a Hindu governed by the Bombay school dies leaving two 
daughters, each daughter takes an absolute mterest in a moiety of her 
father s estate, and holds it as her seimrate property, and on her 
death her share will pass to her own heirs as her stridhau («) [s. 170]. 

8. Daughter’s son — 

See notes to s. 43, no. 6. 

e) Bharjirlhiliai v. Kahnujirav (1887) 11 Bom i 
1185 , G'lilajipa v Tajjuma (1907) 31 Bom'. 1 


453 ; Vithappu v. Sa\itri (1910) 34 Bom. 
010, 7 l.C. 445. 



SUCCESSION — BOMBAY SCHOOL. 


83 


9. Mother — S. 72 

See notes to s. 43, no. 7. 

As to a step-mothet see no. 27 (post). 

J.O. Father. 

1 1 . Brother — 

(i) of the whole blood. 

(u) of the half-blood. 

A brother of the full blood succeeds before a brother of the half-blood 
See notes to s. 43, no. 9 ; see also s. 44. 

12. Brother’s son — (el) 

{i) of the whole blood. 

(ii) of the half-blood. 

Sons of brothers of the whole blood succeed bt-'fore sons of brothers 
ot bjs.U-hlQQd. Se-e. tQ s. 4^, IQ •, see aUo a. 44. 

13. Grandmother (father’s mother) — 

SeB note to no. 14 below. 

14. Full sister — 

Her place in the order of succession is not affected by the Hindu Law 
of Inheritance (Amendment) Act 2 of 1920 [s. 43 (130)]. See s. 64 (1) 
and 8. 05. 

15. Half-sister — 

See s. 43, No. 13C, s. 64 (1) and s. 66. 

The three remote descendants of the deceased. 

16. Great-great-grandson — ■ 

It is not settled whether nos. 16, 17 and 18 succeed before or after no. 

19. In Aitpaji v. MoJtaiiJal (/), the question was raised, but 
not decided. 

17. Great-great-great-grandson. 

1 8 . Great-great-great-great-grandson . 

Widows of 4: male lineal descendants of the deceased. 

19. Great-grandson’s widow. 

{(I) Ifahalchand v. Bemchand (1885) 9 Bom. 31 I (/) (1030) 54 Bora. 564, 611, 127 I C. 385, (’30) 

(takes before brother's bod's Avidow). I A.B. 273 [F.Jl.]. 



84 


HINDU LAW. 


S.72 


20. Great-great-grandson’s widow. 

21. Great-great-great-grandson’s widow. 

22. Great-great-great-great-grandson’s widow. 

The 4 remote descendants of the brother. 

23. * Brother’s son’s son. 

He does not succeed before but succeeds after thes on’s widow (i) [no. 17]. 


24. Brother’s son’s son’s son. 

25. Brother’s son’s son’s son’s son. 

26. Brother’s son’s son’s son’s son’s son. 

Widoivs of father, brother and brother’s descendants. 

a 

27. Step-mother (g). 

28. Brother’s u'ldow (h). 

29. Brother’s son’s widoiv {i). 

30. Brother’s son's son’s widow. 

31. Brother’s son’s son’s son's widow. 

32. Brother’s son’s son’s son’s son's ividoiv. 

33. Brother’s son's son’s son’s son’s son’s widow. 
Father’s father and his 6 descendants. 

34. Father’s father. 

34A. Son’s daughter. 

34B. Daughter s daughter, hsces. 43 , nos. isA, 13B and 13D. 

I 

34C. Sister’s son (j). J 

35. Paternal uncle. 


36. 


(!) of the whole blood. (2) of the half-blood. 

Paternal uncle’s son. 

He takes before no. 42. (Racham v. Kalingapa (1892) 16 Bom. 716). 


) llaUimabai v Tukaram (1887) 11 Bom 47 
takes before half-brother'ft widow » husio 
bai V. Zoolekhahai (1895) 19 Bom 707 
(takes before paternal uncle’s eon) 

\) Dasangavda v Basangaida (1915) 39 Bom. 


87, 27 1 C. 167, (*14) A B 202 (takes 
before pat, uncle’s aonl 
(i) Madkavaram v. Bate (1897) 21 Bom 739 
0) Ambabaxv Aesftof BandorAand (1941) Boro. 
2'iO Ifli T C \79 Gill 4 



SUCCESSION — BOMBAY SCHOOL. 


85 


37. Paternal uncle’s son’s son. S. 72 

He takes before no. 42. (Kashibai v. Moresliwar (1911) 35 Bom. 389). 

38. Paternal uncle’s son’s son’s son. 

39? Paternal uncle’s son’s son’s son’s son. 

40. Paternal uncle’s son’s son’s son’s son’s son. 

Widcnvs of father's father and his 6 descendants. 

41. Father’s step-mo^/jer. 

42. Paternal uncle’s tvidow. 

She takes before father’s sister (fc). 

43. Paternal uncle’s son’s widow. 

44. Paternal uncle’s son’s son’s widow. 

45. Paternal uncle’s son’s son’s son’s ividow. 

46. Paternal uncle’s son’s son’s son’s son’s widow. 

47. Paternal uncle’s son’s son’s son’s son’s son’s 

widow. 

The 3rd agnate female and the 3rd agnate male ancestor, 
and the latter’ s 6 descendants. 

48. Father’s father’s mother. 

49. Father’s father’s father. 

50. Father’s paternal uncle. 

51. Father’s paternal uncle’s son. 

52. Father’s paternal uncle’s son’s son. 

53. Father’s paternal uncle’s son’s son’s son. 

54. Father’s paternal uncle’s son's son’s son’s son. 

55. Father’s paternal uncle’s son’s son’s son’s son’s son. 

Widows of father’ s father s father and his 6 descendants. 

56. Father’s father’s step-mo^Aer. 

57. Father’s paternal uncle’s widow. 

(*) Raghumlh Shankai v. £aaj»i6ai(1035) 69 Bom. 417, 157I.C.658, 37 Bom. L. K. 150 (’35) A.B. 298. 



86 


HINDU LAW. 


Ss. 

72-74 


58. Father’s paternal uncle’s son’s widow. 

59. Father’s paternal uncle’s son’s son’s widoio. 

60. Father’s paternal uncle’s son’s son’s son’s widow. 

61. Father’s paternal uncle’s son’s son's son’s son’s 

, ididoiv. 

62. Father’s paternal uncle’s son’s son’s son’s son’s 

son’s widow. 

The remainhig sapirdm and their ividoivs. 

63-70. The 4th agnate female and the 4th agnate male 
ancestor and the latter’s 6 descendants, one after 
another (1). 

71-77. Widows of gotraja sapindas nos. 64 to 70, one 
after another (1). 


73. Order of succession among samanodakas. — Failino- 
sapindas and their widows (sec. 72), the inheritance goes to 
Samanodakas according to the rules stated in sec. 45 above, 


74. Order of succession among bandhus. — Failing sama- 
nodakas, the inheritance passes to bandhus according to the 
rules laid down in secs. 46 to 54 and 56 above. As regards 
the succession of bandhus, there is no difference between 
the Mitakshara and the Mayukha (m). 

Father s sister According to S. 56, the father’s sister 
should be a bandhu, but according to the Mayukha, she is a 
gotraja sapinda ; she comes in before bandhus, but after 
all the gotraja sapindas (n), for instance, a father’s paternal 
uncle s son (o), a paternal uncle’s widow (p). It is not clear 
whether, under the Mitakshara as interpreted in Bombay, 
s e IS a gotraja sapinda or a bandhu. But she is not more 
remote than a Bandhu (q). 


^ In SagujHi V. Sadasii (q) ifc was held that the lather’s half-sister, though a female, 
bemg a bandhu exparte palerna is entitled to preference over the mother’s brother, who 
tfiough a male, is a bandhu exjxirte wio/ern**. 


This leads us to the question as to what are the principles to be applied in a contest 
e ween a male bandhu and female bandhu. In lialkruhna v. Ramkriahia (r) it was 


(l) AmMus V. Jiphai (I'llZ) 14 Bom. L.R. 

2G1, J4 I,C, 071. 

(m) farot Bapalal v. Mehtti Barilal ( 1895 ) I 9 

£orn. 031. 

(s) Vijwranrjam v. Lakshuman (1871) 8 Bom 

Tt f o r 941 9fii .m-i ’ • 


( 0 ) 

iP) 


( 5 ) 


(janreh V. lyauhu (1903) 27 Bom. filO. 
eaghunalh Shankar v. Lazm\ llai (193.S) 
•M Bom. 417, 37 Bom. T,.R. 150, 157 
, I.C. 6!)8, (’35) A.B. 298. 

(1902) 20 Pom. 710. 

r-»DoA\ 4 c oro rrtTri>--ri l'ni\k U 100 



SUCCESSION — BOMBAY SCHOOL. 


87 


held that a mother’s sister’s son should be preferred to a brother’s daughter. This 
decision is in direct conflict with the previous decision which was not cited either in the 
arguments or in the judgment. In Kenchava v. Ghimalap^a (s) the Privy Council left the 
question open and held that the father’s sister’s son (a male bandhu exparie paterna) is 
to be preferred to the father’s brother’s daughter (a female bandhu of the same degree). 

In Bai Vijli'a case {t), a mother’s sister’s son’s son, who is an atma-bandhu was 
preferred to a father’s father’s sister’s son's daughter who is a pitri-bandhu. « 

75. Strangers as heirs. — See secs. 57 and 58 above. 


Ss. 

74-77 


76. Escheat. — See sec. 59 above. 

77. Order of succession in cases governed by the Mayukha.— 
The following is the order of succession to males in cases 
governed by tlie Mayukha (u) : — 

1-6. Same as S. 72. 

7. Father. • 

8. Mother — 

See notes to see. 72, no. 7, and notes to sec. i3, no. 7. 

9. Full brothers along with sons of full brothers who 

are dead — 

This rule does not go beyond brothers and brother’s sons (v). Hence 
an uncle's son’s son’s son does not take equally with, but is postponed 
to, an uncle’s son’s eon (ic). As to the place of the half-brother, 
see no. 13 below. See Mayukha, ch. iv, sec. 8, v. 20. 

10. Full brother’s son — 

With the brother’s son ends “ the compact series of heirs.” In default 
of brother’s sons, the inheritance passes to gotraja sapindas, the 
first amongst them being the paternal grandmother [no. 111. See 
Mayukha, ch. iv, sec. 8, v. 18. 

11-12. Same as S. 72. r ' 

13. Father’s father and half-brother, in equal shares {x ) — 

This is obsolete (y). It is highly probable that the High Court of Bombay 
will in cases governed by the Mayukha adopt the same order of succes- 
sion as that in cases governed by the Mitakshara, at least after no. 12. 
The order of succession after no. 12 will probably be (1) half-brother, (2) 
half-sister, (3) half-brother's son. The order of succession will thence- 
forth be the same as that in cases governed by the Mitakshara as 
interpreted in Bombay, that is, as in as, 72-76, As to the father’s 
sister, see s. 74. 


(«) (1924) 51 r.A. 308, 376-377, 48 Bom. 569. 

82 I. C. 906, (’24) A. PC. 209 
(f) Bai Vifjli v. Bai Pr<ibfuilakshmi{lQQ7) 9 Bom. 
L. U. 1129. 

(m) Mayukha, ch. iv, s. 8. 

(v) Chairdika Bakhsh v. Mana Knar (1902) 29 
I. A. 70, 74, 24 All. 273, 280. 


(w) Uaribkai v. Mathur (1923) 47 Bom. 940 
77 I.C. 224, (’24) A.B. 140. 

(*) Vilhalrao v. liamrao (1900) 24 Bonv 317, 
338. 

(y) Sakharam v, Sitabai (1879) 3 Bom. 35.3, at 
p. 363 : Kesserbai v. ValaO (1880) 4 Bom. 
188, 207-208. 



88 


CHAPTER Vll. 


Ss. 

78,79 


ORDER OF INHERITANCE TO MALES ACCORDING 
TO DAYABHAGA DR BENGAL SCHOOL. 

78. Heritable property.— The property of a deceased TIindu 
governed by the Dayabhaga law passes by succession, including 
kis share in undivided property (z). 

The Dayiibhaya of Jimuta Vahana is the leading treatise of the Bengal school. The 
present Chapter deals with the order of succession according to the Dayabhaga. 

According to the Mitakshara law, the interest of a deceased coparcener passes on hi.s 
death to other members of the coparcenary by survivorship. The Dayabhaga law does 
not recognize the right of survivorship as between coparceners. 

79. Spiritual benefit the governing doctrine. — Succession 
according to the Bengal school is governed by the capacit}' 
for conferring spiritual benefit (a). Spiritual benefit, however, 
is not always the guiding principle of inheritance, and in cases 
not contemplated by the Dayabhaga, the doctrine of propin- 
quity as propounded in the Mitakshara may be applied. 

In Ahshay Chandra\. Hari Das (6), Mitra, J., observed that in all cases of absence of 
texts or precedents under the Dayabhaga law, the Court should hiive regard to the theory 
of propinquity as adopted by Vijnaiieswara. In that case the learned Judge said : 
“Spiritual benefit, notwithstanding some authorities to the contrary, is not always 
the guiding principle of inheritance under the Bengal school of law» The theory of 
spiritual benefit cannot apply to a good many cases of inheritance under the Dayabhaga 
school of law. Spiritual efficacy as a principle guiding rules of succession must fail in the 
cases of all female relations. . . In most cases, propinquity, spiritual efficacy and natural 
lo7e and affection run in the same lines and no difficulty arises, but whenever they run 
in different lines, Jimutavahana was compelled to ignore spiritual efficacy and have 
recourse to other principles or express texts.” In a later case (c) Mukerji, J., declined to 
follow this view, and observed that the scheme of the Dayabhaga was radically different 
from and to some extent incompatible with the scheme of the Mitakshara and the one 
could not be made to supplement the other so far as the law of inheritance was concern- 
ed, and that although the Dayabhaga might be silent so far as express enumeration 
went, it was not silent so far as the indication of the general principle according to which 
heirship was determined was concerned. In a recent case (d), however, the Court preferred 
the view taken by Mitra, J. 


\ aishnavas (worshippers of Vishnu) do not observe shradka and offer no oblations to 
their ancestors. But this does not exclude them from inheritance, for the right to 
inherit is based on the cupacify to offer jJindajj, and not on the actual offering of it (d). 


(z) Durga Nath v. C7ii?ifttj;ioni{1004) 31 CrI. 214. 
{a) Guru Gobind v. Anand Lai (1870) 5 

L. K. 15 [F. B.] ; Tagore v. Tagore {\9iT2.\ 
9 Bcny. L. U. 377, 394 I, A. Sup. Vol. 
47, 04 ; Digumber v, Moti hall (1883) 
9 Cal. 503 [F. B.]. 

(t) (1908) 35 Cal. 721, 726 ; Toolsee Base v. 


Luckhymoney (1000) 4 C. W. N. 743, 

(c) Sambhu Chandra v. Kartick Chandra (1927) 

54 Cal. 171, 174, 07 I. C. 845, (*27) A. 
C. 11. 

(d) Nalxnaksha v. llajoni (1931) 58 Cal. 1392, 

134 I.C. 1272, (’31) A.C. 741. 



DAYABHAGA SUCCESSION. 


89 


It may be* observed that in moat cases spiritual efficacy and propinquity run on the 
same lines. The result is that the same persons who are heirs under the Dayabhaga 
law are also heirs. under the Mitakahara law. But all persons who are heirs under the 
Mitakshara law are not heirs under the Dayabhaga law. The Dayabhaga excludes 
many cognates recognized as heirs by the Mitakshara. Cognates are persons related 
to the de'fceased through a female. 

80. Doctrine of spiritual benefit. — The foundation of the 
doctrine of spiritual benefit is the Parvana Sradha ceremony. 
In the course of the ceremony the performer” presents three 
different kinds of offerings to his deceased ancestors, namely — 

(1) pinda or an entire cake, called an undivided oblation ; 

(2) pinda-lepas or remnants of the pinda ■which cling 

to the hand while mixing the ingredients of which 
the pindas are composed, called a divided oblation ; 
and , 

(3) libations of water. 

The pinda is offered to the three immediate paternal 
ancestors, that is, the father, grandfather and great-grand- 
father, and the three immediate maternal ancestors, that is, 
the maternal grandfather, the maternal great-grandfather 
and the maternal great-great-grandfather. 

The pinda-lepas are offered to the tliree paternal ancestors 
next above those to whom the pinda is offered. 

The libations of water are offered to the seven paternal 
ancestors next above those to whom pinda-lepas are offered. 

He who offers a pinda and he to whom a pinda is offered 
are the sapindas of each other. 

He who offers pinda-lepas and he to whom they are 
offered are the sakulyas of each other. 

He who offers libations of water and he to whom they 
are offered are the samanodakas of each other. 

But this does not exhaust the list of sapindas, sakulyas 
and samanodakas. For a deceased Hindu doe^ not merely 
benefit by oblations which are offered to himself : he also 
participates in the benefit of oblations offered to the paternal 
ancestors to whom he himself was bound to offer them while 
he was alive (e). The result is that persons connected by 
oblations presented to common ancestors become the sapindas, 


Ss. 

79,80 


(e) Garu Qobind v Anand ImI (1870) 5 Ben^, L.U. lo, 37 [F.B.l. 



90 


HINDU LAW. 


Ss. 

80-82 


sakulyas and samanodakas of one another, according to the 
nature of the oblation presented to them. This accounts 
for a large number of other relations who are recognized as 
sapindas, sakulyas and samanodakas. 

Pind<ss are of three kinds in the following order of superiority (/) 

1. Those given directly to the deceased himself. 

2. Those given to his three paternal ancestors in ivkich he participates. 

3. Those which he was bound to give to his three maternal ancestors, but in 

ichich he does not participate. 

In each of these three descriptions of pindas, those presented by agnate dcBoendants 
of a common ancestor are preferred to those presented by cognate descendants of such 
ancestor. 

“Although the deceased has no right of participation in the oblations presented 
to his maternal ancestors, still, inasmuch as the three immediate maternal ancestors 
received oblations from him, and the agnate and cognate descendants of each offered 
pindas which the deceased was bound to give, there is thus created a heritable bond 
between him and his maternal kinsmen ” {g). * 

81. Three classes of heirs. — The tlixee kinds of offerings 
referred to in the preceding section give rise to three classes 
of heirs, according to the Dayabhaga law, namely, (1) sapindas, 
(2) sakulyas, and (3) samanodakas. 

The sapindas succeed before the sakulyas, and the sakulyas 
succeed before the samanodakas (li). 

The reason {or this preference is that pindas (undivided oblations) are considered 
to bo of higher spiritual value than pinda-lepas (divided oblations) and pinda-lepas are 
considered to be of higher spiritual value than oblations of water. 

82. Sapindas — A Hindu governed by the Dayabhaga 
law is the sapinda— • 

(1) of those to whom he is bound to offer apinda while 
he is alive ; 

In this group are included his three immediate paternal ancestors, being his father, 
grandfather, great-grandfather, and his three immediate maternal ancestors, being his 
maternal grandfather, maternal great-grandfather, and maternal great-great-grand- 
father — altogether 6 relations. 

(2) of those who, on his death, are bound to offer a pinda 
to him ; 

In this group are included those persons to whom he stands in the relation of father, 
grandfather, and great-grandfather, namely, his son, grandson and great-grandson, and 
those persons to whom he stands in the relation of maternal grandfather, maternal great- 
grandfather, and maternal great-great-grandfather, namely, his daughter’s son, son’s 
daughter’s son and grandson’s daughter’s son— altogether 6 relations. 

(/) Sarvadhlkan, 2lid ed , pp. 701, 705, (A) ftiiru fiotiad v. .Inand f,a( ( 1870 ) 5 Heap. L. 

({T) Sarvadhikari, 2nd ed., p. 704. !■'». 38 IF.B.} ; Diffamh*-?- koy v. AloCi 

Lull (1883) 9 Cfll. 563 [F.H.]. 



DAYAUHAGA SUCCESSIOX. 


91 


(3) of those who are bound to offer a pinda to the ances- S. 82 
tors to whom he is bound to offer a pinda, those ancestors 
being his three immediate paternal ancestors and his three 
immediate maternal ancestors ; 

and all of them are his sapindas (i). 

The 3rd set of sapindas may be divided into four groups as follows : — 

Firstly, the brother, brother's son, brother’s son’s son; paternal uncle, paternal 
uncle’s son, paternal uncle’s grandson ; paternal granduncle, paternal granduncle’s 
son, and paternal granduncle’s grandson — altogether 9 relations. 

The brother is bound to offer 3 pindas, one to each of the three paternal ancestors 
of the deceased, they being also his paternal ancestors. The brother’s son is bound 
to offer 2 pindas, one to his grandfather, that is, the owner’s father, and the other to his 
great-grandf ither, that is, the owner’s grandfather. The uncle and uncle’s son are bound 
each to offer 2 pindas, one to each of the two paternal ancestors of the deceased, namely, 
his grandfather and great-grandfather, who are also their grandfather and great-grand- 
father. The remaining^five relations are bound each to offer 1 pinda, the brother's son’s 
son to the owner’s father, the uncle’s son’s sen to the owner’s grandfather, and the grand- 
uncle, his son and grandson each 1 pinda to the owner’s great-grandfather. This is 
a case where some or all of the three ancestors of the deceased are also the pa^ernaZ 

ancestors of the 9 relations mentioned_above as will be seen from the following diagram ; — 

great-grandfather 

i 


grandfather 

[ 

granduncle 

1 I 

father uncle 

( 

son 

1 1 

Owner brother son 

son 


son son 


son ^ 

Secondly, sister's son, father' s^ister's son, grandfaUier’s sister’s son; brother s 
daughter’s son, brother's son’s da ught eiL5.aQn ; paternal uncle’s daughter’s son, paternal 
granduncle’s d an th er’s son ; paternal uncle’s son’^ daughter’s son, paternal granduncle’s 
son’s daughter's son— altogether 9 relations. \ 

Note. — The sister’s son offers 3 jnndas, one to each of the three paternal ancestors 
of the deceased, they being his own maternal ancestors. The father’s sister’s son and 
the paternal uncle’s daughter’s son offer each 2 pindas, one to each of the two paternal 
ancestors of the deceased, namely, his grandfather and great-grandfather, they being 
their maternal ancestors. The brother's daughter's son offers 2 pindas, one to the father 
and the other to the grandfather of the deceased, they being his maternal ancestors. 
The remaining five relations each offer 1 pwda to one or other of the three paternal 
ancestors of the deceased that ancestor being their maternal ancestor. This is a case 
where some or all of the paternal ancestors of the deceasecLare the maternal ancestors 
of the 9 relations mentioned above. These are bandhus eijnSfernu of the Mitakshara 
schopr 


(i) Guru Gobind v, Lai (1870) 5 Beiig. L. B. 15, 39 [F.B.]. 



92 


HINDU LAW. 


Ss. 

82,83 


Thirdly, maternal uncle, maternal uncle s son, maternal uncle’s grandson ; maternal 
granduncle, maternal granduncle's son, maternal granduncle's grandson ; maternal 
great-granduncle, maternal grcat-grandunclc’s son, maternal great-granduncle’s grandson 
— altogether 9 relations. 

Xote.— The maternal uncle offers 3 piridas, one to each of the three malernal 
ancestors of the deceased, they being his own paternal ancestors. The maternal uncle's 
son, the maternal granduncle, and the maternal granduncle’s son, each offer 2 pindas 
to two out of the three maternal ancestors of the deceased, these ancestors being their 
paternal ancestors. The remaining five relations each offer one pinda to one or other 
of the three maternal ancestors of the deceased, that ancestor being their ancestor. 

This is a case where some or all of the malernal ancestors of the deceased are the paternal 
ancestors of the 9 relations mentioned above. These are bandhus ex parte maternaoi 
the Mitakshara school. 

Fourthly, TiLaternal aunt's son, maternal grandaunt’s son and maternal great- 
grandaunt’s son; maternal uncle's daughter’s son; maternal uncle’s son’s daughters 
son ; maternal granduncle’s daughter’s .son, maternal granduncle’s son’s daughter’s 
son ; maternal great-granduncle’s daughter’s son, maternal great. granduncle’s son’s 
daughter’s son — altogether 0 relations. • 

F^ote. — The maternal aunt’s son offers 3 pindas, one to each of the three maternal 
ancestors of the deceased, they being also his maternal ancestors. The maternal grand- 
aunt’s son, the maternal uncle’s daughter’s son, and the maternal granduncle’s daughter’s 
son each offer 2 pindas to two out of the three maternal ancestors of the deceased, these 
ancestors being also their maternal ancestors. The remaining five relations each offer 
one pinda to one or other of the three maternal ancestors of the deceased, that ancestor 
being also their maternal ancestor. This is a case whore some or all of the three maternal 
ancestors of the deceased are also the maternal ancestors of the 9 relations mentioned 
above. Tnese relatioii-s also are bandhus ex parte materna of the Mitakshara school. 

It will thus be seen that there are in all 48 male sapindas. To these are to be 
added the 5 female sapindas mentioned in the next section. The total number of sapinda.s 
is thus 53. 

Since sapindas succeed before sakulyas, and since the sapindas enumerated above 
comprise also several relations called bandhus in the Mitakshara, it is clear that bandhus 
also succeed before sakulyas. According to the Mitakshara law, bandhus do not succeed 
until after samanodakas. Tuis is the main point of distinction between succession 
according to the Dayabhaga law and succession according to the Mitakshara law. In 
other respects it will be found that the order of succession according to the Daj^abhaga 
law, though arrived at by the application of rules based upon the doctrine of spiritual 
benefit, is more or less the same as in the Mitakshara law. See sec. 95. 

83. Female sapindas. — There are five female sapindas 
according to the Dayabhaga law, namely the widow, the 
daughter, the mother, the father’s mother and the father’s 
father’s mother. No other female is recognized as an heir 
by the Bengal school, 

Taere are no female heirn in the class either of sakulyas or samanodakas. 

The wife is the sapinda of her husband, for in the absence of male issue, she performs 
the funeral ob-ieqnics. The mother, the father’s mother, and father’s father’s mother 
are sapindas, for they share in the pindas or cakes offered to their respective husbands. 
The daughter is a sapinda, for though she herself does not offer any pinda, her son does so. 
See sec. 61 above. 



DAYABHAGA SUCCESSION. 


93 


84, Sakulyas. — A Hindu governed by the Dayabbaga 
law is the sakulya (1) of those to whom he is bound to offer 
finda-lepa while he is alive, (2) of those who on his death are 
bound to offer pinda-lepa to him, and (3) of those who are 
bound to offer pinda-lepa to those to whom he offers the pinda- 
lepa, 

and all of them are his sakulyas. 

Tae aalsulyas are .all males. They are — 

First, the 4th, 5th and 6th paternal male ancestors of the owner, being F\ F^ and 
F^, in the Table at p, 34 ; 

Secondly, his 4th, 5th and 6th male descendants in the male line, that is, S*, S® and 
S®, in the said Table ; and 

Thirdly, the si.v male descendants in the male line of the 4th, 5th and 6th paternal 
male ancestors, and the ith, 5th and 6th male descendants in the male line of his father, 
grandfather, and great-grandfather, that is, to x* in the line of F^, F^ and F^ and 
to X* in the lines of F'^ to F^, in all 27 relations. 

The total number of sakulyas is thus 3-f 3-f27=33. 

T le Mitakshara does not recognize sakulyas as a distinct class ; they are merged in 
the group of gotraja sapindas. 

Tne sakulyas are all agnates, that is, persons connected with the deceased by an 
unbroken line of male descent. None of them is a cognate, that is, a person related 
to the deceased through a female. But the sapindas of the Bengal school, as we have 
seen, are some of them agnates and some of them cognates. The samanodakas also, ns 
we shall presently see, are all agnates. 

According to Dr. Sarvadhikari (j), the following 9 coynale relations are also 
sakulyas, namely — ■ 

1^ — 3. The daughter’s son of F*, his son, and his son’s son. 

4 — 6. The daughter’s son of F^, his son, and his son’s son, 

7 — 9. The daughter’s son of F^, his son, and son’s son, 

85. Samanodakas. — A Hindu governed by the Dayabhaga 
law is the samanodaka (1) of those to whom he is bound 
to offer libations of water, (2) of those who on his death are 
bound to offer libations of water to him, and (3) of those who 
are bound to offer hbations of water to those to whom he offers 
the libations, 

and all of them are his samanodakas. 

The samanodakas like sakulyas are all males. They include all agnatic relations 
from the 8th to the 14th degree, and are 147 in number. See notes to see. 40, 
“ Samanodakas.” 


Ss. 

84,85 


(j) 2nd ed., p. 718. 



94 


HINDU LAW. 


Ss. 

86-88 


86. Principles governing precedence among sapindas. — The 
order of succession among sapindas is governed by the 
following principles : — ■ 

(1) Those who offer a pinda to the deceased ^are pre- 

ferred to those who accept it from the deceased. 

Thus the son, grandson and great-grandson offer oblations to the deceased, and 
the father, grandfather and great-grandfather receive oblations front the deceased ; 
therefore, the son, grandson, and great-grandson succeed before the father, grandfather, 
etc. The son, grandson and great-grandson ail inherit as one heir, for the oblations 
offered by them are of equal spiritual value. 

(2) Those who offer oblations to both paternal and 

maternal ancestors are preferred to those w'ho 
offer oblations only to the paternal ancestors. 

Therefore relations of the whole blood arc preferred to those of the half-blood. 
full-brother offers oblations both to the paternal and maternal ancestors of the decea.sed, 
the}' being his own paternal and maternal ancestors. But a half-brother offers oblations 
only to the paternal ancestors of the deceased, and not to the maternal ancestors of 
the deceased, his mother and the deceased’s mother being different persons. 

' (3) Those who offer a pinda to the paternal ancestors 
of the deceased are preferred to those who offer 
it to his maternal ancestors. 

(4) Those who offer a larger number of cakes of a 
particular description are preferred to those who 
offer a less number of cakes of the same descrip- 
tion : and where the number of such cakes is 
equal, those who offer them to nearer ancestors 
are preferred to those who offer them to more 
distant ancestors {k). 

Note that a person who offers one oblation to the father of the deceased owner 
is preferred to another who offers two oblations to the grandfather and great-grandfather. 
Hence the grandnephew ranks before the paternal uncle (i). 

87, Principles governing precedence among sakulyas and 
samanodakas. — The order of succession among sakulyas and 
samanodakas is governed by principles similar to those which 
apply to sapindas {m). 


88. Order of succession among sapindas.— The sapindas 
of the Bengal school are divided into two classes, namely, 
(1) sapindas ex parte pat-erna, and sapindas ex parte 


\k) Guru Qobind v. Anand TmI (1870) 5 Beng 
L. U. 15 ; Gobind v. Mohcfh (1874) 

15 Beng. L, R. 35 ; Pran Nath v. Surrut 
Chandra (1882) 8 Cal. 460; huri Das v. 


(/) 

(m) 


Bama Churn (1888) 15 Cal. 780 ; Braja 
Lai V. .Jiban (1800) 20 Cal. 285. 

(1882) 8 Cal. 400, HUpra, 

(1870) 5 Beng. L. 11. 15, 39 [F.B.?,«U77ra. 



DAYABHAGA SUCCESSION. 


95 


materna. Nos. 1 to 32, except the five females, namely. 
Nos. 4, 5, 8, 14 and 20, are sapindas ex parte paterna. Nos. 33 
to 53 are sapindas ex parte materna. Sapindas ex parte materna 
do not succeed until after sapindas ex parte paterna. The five 
females Nos. 4, 5, 8, 14 and 20 succeed by virtue of special 
texts. j 


The sapindas succeed in the following order : — - 
1-3 Son, grandson and great-grandson. 

They succeed m the same manner as under the Mitakshara , see sec 43, nos 1 3, on 
p 35 above. 

4. Widow (n). 

See notes to sec 43, “ idow.*’ 


5. Daughfer. 

Priority amongst daughters — The umnarned daughter succeeds first , then the 
married daughter -who iias or is likely to have male issue Daughters who are barren 
or are widows without male issue, or are mothers of daughters only, are excluded from 
inheritance to), though their re marriage is permitted m the caste to which they belong 
and though they may be of child bearing age (p). Thus it has been held that a married 
daughter having a son (g), and even a daughter's son (r) exclude a childless widowed 
daughter But, where, during the life time of the father the son in law was willing and 
competent to adopt and has actually adopted after the father’s death, the daughter is 
entitled to inherit (a) 

XJ nchaslity — An unchaste daughter in Bengal is not entitled to inherit to her father. 
But once the estate has vested in her, it cannot be divested by subsequent unchastity ((). 

As to other matters, see notes to sec 43, “ Daughter ” 

6. Daughter’s son. 

The d^iughter's son's son is not an heir under the Daj abhaga school of Hindu 
law («) The reason given in the Dayabhaga is that he is not the giver of a funeral 
oblation ; the oblation ceases with the daughter’s son . Dayabhaga, XI, 2, 2. See 
notes to sec 43, “ Daughter’s son.” 

7. Father. 

8. Mother. 

An unchaste mother in Hengal is not entitled to inherit to her son But once the 
estate has vested in her, it cannot be devested by subsequent unchastity (v). 


(n) Durga Nath v Chmtamojn (1904) 31 Cal 
214 

(o> Benodev Purdkan (1805) 2 W U C 11.176, 
Radhav «am(1866) 6 W 11 147 

(p) Binodxnx v Suhihee (1921) 48 Cal 300, 57 
I C 740, (’21) A C 295 Srirmix Pramxla 
V Chandra Shekhar (1021) 43 All 450, 
00 I C 777, ('21; A A 122 
(tf) 48 Cal 300, 57 I C 740, ( 21) A C 295, 
supra 


(r) 43 All 450, 60 1 C T77, ( 21) A A 122, 

supra, 

(s) Uma Eanta Bhatlarharma v Bed Rati Dili 

(1942) Cal 290, C42) A C 265 

(t) Ramananda v ItaiLishori (1895) 22 Cal 

347 9«neian V (1905) 32 Cal 

871 

(u) Nepaldas v Prnthas Chandra (1925) 30 

i W N 357, 90 I C 499, ( 26) A C 460 
(i) Ramuaih v Durga (1879) 4 Cal 550 


S.88 



96 


HINDU LAW. 


s.9i 


9. 

10 . 

11 . 

12 . 

13. 

14. 

15. 

16. 

17. 

18. 
19. 
2&. 
21 . 
22 

23. 

24. 


Brother 
Brother’s son 


r (i) 
r w 


‘Brother’s son’s son 


r (i) 


of the whole blood, 
of the half-hlood. 
of the whole blood . 
of the half-hlood. , 
of the whole blood, 
of the half-blood. 


Sister’s son. 

Paternal grandfather. 

Paternal grandmother. 

Paternal uncle. 

Paternal uncle’s son. 

Paternal uncle’s son’s son. 
Bather’s sister’s son. 

Paternal great-grandfather. 
Fsieraa} great-grssi^moiher. 
Paternal granduncle. 

Paternal granduncle’s son. 
Paternal granduncle’s son’s son. 
Father’s father’s sister’s son. 


Then come, consistently with the opinion expressed jn the undermentioned cases (ui) 
the following 8 cognate relations, namely, — 

25. Son’s daughter’s son. 

26. Son’s son’s daughter’s son. 

27. Brother’s daughter’s son (cr). 

28. Brother’s son’s daughter’s sou (y). 

29. Paternal uncle’s daughter’s son (z). 

30. Paternal uncle’s son’s daughter’s son. 

31 . Paternal granduncle’s daughter’s son. 

32. Paternal granduncle’s son’s daughter’s son. 

Dr. Sarvadhikari (o) places Nos. 25 and 26 immediately after No. 6, Nos. 27 and 28 
immediately after No. 12, Nos. 29 and 30 immediately after No. 18, and Nos. 31 and 
32 immediately after No. 24 . 

Next come the maternal relations of the deceased. 


(m) Gaijind Proshad \ Moheik Chvnder {lQ7b) 15 \ 
Beng. L. K. So. See also Uan Das v. 
Bama Churn (1888) 15 Cal, 780, 793-794 ; | 
Pran- 2\'aOi v. SumU Chundru. (1882) 8 I 
Cal. 460, 4G3-404. 

(i) Diffumbi>r v, Moh Lall (1883) 9 Cal. 563 


(.V) 

(«) 


(«) 


(1880^ 8 Cal. 460, supra. 

(Jobind v. Anand Lai (1870) 5 Bong 
I'. B. 15 [F.B.] ; Braja Lai v. Jiban 
„ <j899) 26 Cnl. 285. 

Kd., page 709. 



DAYABHAGA SUCCESSION. 

33. Maternal g*wjBfflfe«|iier. 

34. Maternal uncle (b). 

35. Maternal uncle’s son (c). 

36. ' Maternal uncle’s son’s son. 

37. Mother’s sister’s son. 

38. Maternal great-grandfather, (39) his son, his 
grandson, (41) his great-grandson, and (42) his daughter’s son. 

43. Maternal great-great-grandfather, (44) his son, (45) 
his grandson, (46) his great-grandson, and (47) his daughter’s son. 

The maternal great-great-grandfather*a daughter's sons son is not an heir under 
the Bayahhaga law (d). He is an heir under the Mitakshara law : see sec. 54, no. 94. 

48-49. Son’s daughter’s son and son’s son’s daughter’s 
son of the maternal grandfather ; (50-51) son’s daughter’s 
son and son’s son’s daughter’s son of the maternal great- 
grandfather ; and (52-53) son’s daughter’s son and son’s son’s 
.daughter’s son of the maternal great-great-grandfather. 

Dr. Sarvadhikari (e) places Nos. 48 and 49 immediately after No. 37, Nos. 50 and 
61 immediately after No. 42, and Nos. 52 and 53 immediately after No. 47. 

Note that Nos. 12, 18, 24, 25 to 32, and 33 to 53 are bandlius according to the 
Mitakshara school, and they do not succeed until after the samanodakas of that 
school. 

89. Order of succession among Sakulyas. — Faihng all 
sapindas the inheritance according to the Dayabhaga system 
passes to sakulyas, according to the order to be deduced from 
the rules laid down in section 86 above. 

90. Order of succession among Samanodakas. — Failing all 
sapindas and sakulyas the inheritance passes to samanodakas, 
according to the order to be deduced from the rules in 
section 86 above. 

91. Preceptor, disciple and feUow-student. — On failure of 
all the heirs of the deceased his preceptor, pupil and fellow- 
student are in their order entitled to take the estate. If 
there be none of these the inheritance passes, according to 
the Dayabhaga, to persons bearing the same gotra or family 
name. 

(6) Padma Cooinuri v. Court oj IFcrfis (1882) (d) Chandru v. Kariick Chandra (1927) 

8 Cal, 302, 8 I A. 229 54 Cal. 171, 97 I. C. 845, ('27) A. C. 11 

(c) Rani Srimuty Dibeah Koond Lula (1817) « >-ia 

4M:. I. A. 292. W *.na id., p. 4 10. 


S9. 

88.91 



98 


HINDU LAW. 


Ss, 

91-94 


See sec. 85 and notes tlieretn. 

See sec. 57 and notes thereto. As to succession to hermits and raemt)ers of a 
religious order, see ace. 58 above and Dayabhaga, ch. 11, sec. 6, paras. 35-30. 

92. Escheat. — On failure of all these heirs, the- Crown 
takes escheat (/). 

See sec. 59. 

93. Female heirs: Bengal school. — The only females 

recognised as heirs in the Bengal .school are the (1) widow, (2) 
daughter, (3) mother, (4) father's mother, aiicl (5) father's 
father’s mother (g). 


Succession after Beunion. 

IS. 

94. Order of succession among reunited members.— 
It would seem that according to the Dayabhaga the order of 
succession to the estate of a reunited member is the same as 
that to the estate of an undivided member, with this exception 
that as between claimants of equal degree one who is reunited 
is to be preferred to one who is not reunited, so that a reunited 
brother would be preferred to a brother who was not reunited, 
and a reunited uncle would be preferred to an uncle who was 
not reunited. The preference arising from reunion is not 
confined to the reunited members themselves, but extends 
also to their descendants, so that even the son of a reunited 
brother would be prefen’ed to the son of a separated 
brother {h). 

The only persons who can reunite according to the Bengal school are, (1) the father 
and son ; (2) brothers ; (3) uncle and nephew, 

(/) Collector of Masulipatam v Cwalij Vaivala L. IX. 15. 37 (F.B ]. 

(1800) 8 M I. A. 500. (A) Akshaif v. Jltm {19()8i 35 Ca* 721 : Abha 

((7) Gvtu Gol/vid V. Anand Lai (1870) .5 Beng. Ch’irn v. Mungal Jana (1892) 19 ful. 634. 



99 


CHAPTER Vlir, 

POINTS OF DIFFERENCE BETWEEN MITAKSHARA 
AND DAYABHAGA SUCCESSION. 

95. ' Points of distinction between the Mitakshara and the S. 95 
Dayabhaga system of inheritance. — The following ^re the 
main points of distinction between the Mitakshara and the 
Dayabhaga system of inheritance : — 

(1) The Bengal school divides heirs into three classes, namely, (1) sapindas, 

(2) sakulyas, and (.1) samanodakaa. The sapindas of the Bengal school are 
the sapindas of the Mitakshara school within 4 degrees only pins handhus 
of the Mitakshara school, but not all the bandhus. The sakulyas of the 
Bengal school are the sapindas of the Mitakshara school from the 5th to 
the 7th degree. The samanodakas of the Bengal school are the same as 
tho.se of the Mitakshara school, that is, agnatic relations from the 8th to 
the 14th degree. 

(2) Generally speaking, under the Mitakshara law, no bandhu or cognate can 

inherit while there is any gotraja sapinda or samanodaka in existence. 

Under the Dayabhaga Law, cognates come in with the agnates, and they 
inherit before sakulyas and samanodakas. 

(.8) Cognatio heirs under the Dayabhaga law arc limited in number compared 
with those under the Mitakshara law. Every person who is a cognatio heir 
under the Dayabhaga law is also a cognatic heir under the Jlitakshara 
law, but there are some relations who arc cognatic heirs under the 
Mitakshara law, but arc not recognized as such under the Dayabhaga 
law. The doctrine of spiritual efficacy, which is the governing principle of 
succession under the Dayabhaga law, accounts for the exclusion of the 
latter. 

14) '■ Sapinda according to the Mitakshara, means a person connected through 

the same pinda or body ; according to the Dayabhaga, it means a person 
connected through the same pinda, or funeral cake presented to the manes 
of ancestors at the Parvana Sraddha ceremony. See sec. 80 above. 



100 


CHAPTER IX. 

EXCLUSION FROM INHERITANCE AND PARTITION. 


An impotent person and an outcast are excluded from a share of the heritage 
and so are those deaf and dumb from birth* as well as mad men, idiots* and the dumb 
and any other that is devoid of an organ of sense or action.” — Mamt, ir., 201. 

S. 96 96. Unchastity. — (i) A widow who is unchaste at the 

time of her husband’s death is not entitled to inherit to him, 
but once the husband’s estate has vested in her — -which could 
only be if she was chaste at the time of her husband’s death — 
it cannot be divested by her subsequent unchastity {i). 
Similarly where the widow of a joint owner is given a widow’s 
estate on her husband’s death under a family arrangenaent, 
such an estate is not divested by her subsequent unchastity 
in the absence of any provision to that effect (j). 

(2) There is a difference of opinion between the Mitak- 
shara and Dayabhaga schools as to whether the uncliastity of 
any other female heir excludes her from inheritance. 

According to the Mitakshara law, the only female liable 
to exclusion from inheritance by rea.son of unchastity is the 
widow (k). 

See aec. 43, “ Widow/’ note No. 2. 

According to the Dayabhaga law', the condition of chastity 
applies not only to the widow, but also to other female heirs, 
such as daughter and mother, to the same extent as it does to a 
widow {1). [Sec. 88, notes to nos. 5 and 8.] 

(3) Unchastity excludes a female from inheriting to a 
male, but not to a female. It is, therefore, not a bar to inherit- 
ing stridhana, even according to the Dayabhaga law (m). 

(i) Moniram v, ICeri KolUani (1880) 3 Cal. 

776, 7 I. A. 115; ScHam v. C'htHnummu/ 

(1001) 24 Mad. 441 ; (Janijadbar v. Vellu 
(1012) 36 Bom. 138, 12 l.C. 714. 

(i) LakHhmirhaiid v. Mat. Anandi (1935) 62 
I. C. 250, 57 All. 672, 37 Bom. L. It. 

849, 157 I. C. 869, (’35) A. VC. 180. 

(*) Advyapa v. itudraia (1880) 4 Boin. 104 ; 

Tara v. Krishna (1907) 31 Bom. 495i 
510 ; Kojiyadu v. Lakskmi (1882) 5 
Mad. 149 ; Vedamynal v, Vedanayaga 
(1908) 31 Mad. 100 ; Dal Singh v, Btni 


xoj, o x.Kj. DiU ; jjuiufu 

y Mathura (1011) 33 All. 702, 11 l.C. 43 
[motlier] ; Ham Penja'ih v. Marsammat 
Dalian Bil/i (1024) 3 Pat. 152. 78 l.C. 
749, ('24) A.P. 420 (dailgtitec). 

(l) Hamananda v, Raikishori (1805) 22 Ca). 

347 [dauglitor] ; Sundari v. Pitamban 
(1905) 32 Cal, 871 [ilaughter] ; Ram- 
noth V. Durga (1879) 4 Cal. .550 [inollier] 

(m) Xoqmdra v. Bmoy (1903) 'JO Cal. 521 . 

Ani/ammal v. Venkata (1903) 20 Mad. 



EXCLUSION FROM INHERITANCE. 


101 


97. Change of religion and loss of caste.— (i) Change 
of religion and loss of caste which at one time were grounds of 
forfeiture of property and of exclusion from inheritance have 
ceased to be so since the passing of the Caste Disabilities 
Removal Act, 1850 (n). 


( 2 ) The Act applies only to protect the actual person 
who either renounces his religion, or has been excluded from 
the communion of any religion, or has been deprived of caste. 
Consequently, where the property of a illahomedan converted 
from Hinduism has passed according to Mahomedan law to 
his descendants, Hindu collaterals cannot claim by virtue 
of the Act to succeed under Hindu law (o). 

Once a person has changed his religion and his personal law, that law will govern 
the rights of sncceaaitA of his children (p). 

Illustrations. 

fa) A and his son £ are members of a joint Hindu family, becomes a convert 
to Mahomedanism, A does not by his conversion forfeit his interest in the joint family 
property. The only effect of the conversion is that it operates as a separation of the 
family, and one-half of the property vests immediately in A, and the other half in B : 
Khunni Lai v. Oovind (1911) 33 AU. 356, 38 I.A. 87, 10 I.C. 477 ; Gobitid v. Abdul (1903) 
25 All. 546, 573. 

(b) A married Hindu becomes a convert to Mahomedanism, and marries a Maho- 
medan wife and has children by her. The persons entitled to his estate on his death 
are his Mahomedan wife and children, and not his Hindu wife : Chedambaram v. Ma 
Nyein Me (1928) 6 Bang. 243, 111 I.C. 2, (’28) A.R. 179. 

(c) A and B are two Hindu brothers separate in estate. B becomes a convert 
to Mahomedanism. After B'a conversion a son C is born to him who also is a Mahome- 
dan. B dies leaving C. Afterwards A dies leaving a widow. On A’s death his widow 
succeeds to his property. Alter the widow’s death, C claims A’s property as his nephew. 
C is not entitled to succeed to the propercy. 

It may here be noted that the provisions of Bengal Regulations VII of 1832 were 
to the same effect as those of Act XXI of 1850. 


98. Physical and mental defects: LisquaMed heirs. — ( 1 ) 
Under the texts as interpreted by the Courts the following 


(n) K/iunni Lai v. GobMid (1011) 33 AH. 

356. 38 I.A. 87, 10 I.G. 477, revoraina 
B. c. la 20 AH. 487 ; (1024) 3 Pflt. 152, 
78 I.C. 749, (’24) A.P. 420, suj-rd. Seo 
also Hubbaraya v. (1000) 23 

Mad. 171. 

(o) Mxiar Sen Singh v. MaghMl Hasan Khan 

(10301 57 I.A. 313, 52 Cal. L.J. 551. 128 
r.C. 268, (’30) A. I’C. 2.51 ; alHrmlnB 
(1928) 3 Luck. 154, 107 I.C. 800, (*28) 
A. O. 138, Had dUupprovla^^ lihagwanl 


Singh V. Kallu (1880) 11 AH. 100 ; Vaithi- 
linga v. Ayyathorai (1917) 40 Mad. 1118, 
37 I, C. 753, (’18) A. M. 430 [Conversion 
to Christianity] ; Chedambaram v. Ma 
Nyein Me (1928) 6 Rang. 243. Ill I.C. 2, 
('^) A. It. 179; Jiupa v, Sardar Mvrza 
(1920) 1 Lah. 376, 55 I.C. 410, (’20) A.L. 
270, is no longer good law. 
ip) (1930) 57 I.A. 313, 52 CaJ. L.J. 551. 123 
I.C. 2rt, (’30) A. PC. 251, mpra. 



102 


HINDU LAW. 


S.98 


defects, deformities and diseases exclude an heir from 
inheritance : — ■ 


(a) Blindness (q), deafness, and dumbness (r), provided 

the defect is both congenital and incurable. 

(b) Want of any limb or organ, if congenital. This 
• includes the case of a person who is lame (s) or 

has no nose or tongue. It also includes the case 
of congenital impotence. 

(c) Lunacy. This need not be congenital or incurable 

to exclude the heir from inheritance. It is enough 
if it exists at the time when the succession 
opens {t). 

(d) Idiocy, provided it is complete and absolute (u). 

Idiocy is, of course, congenital. ^ 

(e) Leprosy, when it is of such a virulent type that it 

is incurable and renders him unfit for social 
intercour.se. It need not be congenital (v). 

(f) Other incurable diseases (w). 

{ 2 ) Under the Hindu Inheritance (Removal of Disabili- 
ties) Act, 1928, no person, other than a person who is and has 
been from birth a lunatic or idiot, is excluded from inheritance 
01 fi'om any right or share in joint family property by reason 
only of any disease, deformity, or physical or mental defect. 
Ihe Act came into force on the 20th September, 1928. It is 
not retrospective. 


The Act does not apply to any person governed by the 
Dayabhaga School of Hindu Law. 


(7) Cbunder v. C7/under .Vo//u» (187:.) 

14 Beng. T,. R 273 [Daval.liaiia ca-^el 
Murarji v. Parralibai (1876) 1 Hf.m 177 • 
Vmabax v. Bba>u (1870) 1 Hum. 5r>7 ’ 
(•une^hicar v. Dnnja Pranad (1917) 44 I K 

liR ('17) A l»c! 

I4h ; / Hdiaia v. I*<nanasti (1922) 4» Mad 

M 'I- 215 U’.B.l, “■ 

(r) VaUabhram v, Btfj Jlariganya (1867) 4 

SMint (192.) 31 Bom. .',0. 100 l.C .386 
'I'll' ip. See also Hharmappa v’ 
Vijangmiila (1922) 16 IV>m 435 63 II- 
210, (JZ) A.R. ds; AnuM nlta v 
iiurendra (1939) 1 Ual. 592 

1?! li. 26 Mad. 133. 

(4) iiaooo Bodbanarain v, D?nmo(i870)133I I A 

1'** ' Khhen v. Buiih 
I takaah (1883) 5 All. .309 (F B.] ; IFooma 
Chander (1894) 10 Cal. 
oJO , Ratn Singh v. Bhanx (1916) 38 All 


11.. 32 I.C. 127, (-16) A A. 47 , Muthu- 
mtui V. itecmimmal (1920) 43 Mad. 404, 
:>•> I C, .376, (-20) A.M. 6,32 : Bnptin v. 
fl!l««(1923) 47 Bom. 707, 73 1 0' 279 (’23) 
A. B. 42.3. 

(m) Tiruminviyulv. Itama^vanu (1803) 1 Mad. 

*'''"■«('■ r)a.i (1890) 12 
Oal ill 0891) 18 

(r) Itanwbai v. UaninlHii (1924) .31 I A. 177. 
48 Bom. 303, 80 I.C. 193, (’24) A.Pc! 12,3 ; 
.Innnta v. llamabai (1876) 1 Bom. .354 ; 
IJani/ui/i/'i V. Thnnikachalla (1890) 19 Mad. 
<4 ; Kaimrohaiin v. Subbami/a (1915) 38 
Mad. 2.30, 19 I.C. 000. (’10) A.M. 470 •. 
Aaml, V. AshutoaJi (1923) 50 Cal. 004, 75 
1 C. 474, (’23) A.C. 331, See also Man 
AmjA V. Oaini (1918) 40 All. 77, 43 I.C. 
62, |’18)A,A. 377. 

(Ml) See (191.3) 38 Mad. 2.30, 19 I C. 090, (’16) A. 
AI. 470, supra. 



EXCLUSION FROM INHERITANCE. 


103 


The Act is set out in Appendix V below. Under the Act the only defects which 
disqualify an heir from inheritance or from a share on partition are congenital lunacy 
and congenital idiocy. 

99. Murder. — A murderer, even if not disqualified under 
Hindu law from succeeding to the estate of the person murdered 
is so disqualified upon the principles of justice, equity ^nd good 
conscience. Further, no title to the estate of the person mur- 
dered can be claimed through the murderer. He should be 
treated as non-existent when the succession opens on the 
death of his victim ; he cannot be regarded as a fresh stock 
of descent (x). 

The foregoing statement of the law w'as laid down b}* the Privy Council in K^nchava 
V. Girimalappa (y). It was contended in that case that the Hindu law did not disqualify 
a murderer from succeeding to the estate of his victim, but their Lordships said that 
they did not take thiit view. Their Lordships further said that it was unnecessary to 
decide the point, and held that a murderer was disqualified upon the principles of justice, 
equity and good conscience. 

A murderer cannot be regarded as a fresh stock of descent. He must be regarded 
as not existing when the succession opens on the death of his victim. The result is 
that not only is the murderer excluded from inheritance, but also his son (s), or his 
sister (a), or any other person claiming heirship through him. In Bombay, the wife of a 
murderer is not disentitled from succeeding to the estate of the murdered man. The 
reason is that she does not derive title through her husband, but succeeds in htr own 
right as a gotraja sapinda (6). 

P dies leaving his mother C, a son H and a daughter K of his father’s brother, and 
his father’s sister’s son G. On P's death his mother C succeeds to his property for the 
ordinary Hindu widow's estate. H is the next reversioner. H murders C and is 
sentenced to transportation for life. IVho is entitled to succeed to the estate of P ? Not 
if, because he is the murderer. Is H's sister K entitled to succeed ? No, because she 
could only claim through H, the murderer. H should be regarded as non-existent at 
the date of C's death, so that the next heir to P's e.state is his father’s sister’s son G. G 
is therefore entitled to succeed to P's estate : Kenckava v. Girimalappa, cited above. 

It was held by the Madras High Court that the Hindu law' being silent on the point, 
A murderer could only be excluded on the principle that no one shall be allowed to benefit 
by his wrongful act, and that the proper way to give effect to that maxim was not to 
exclude him from inheritance so as to prevent the legal estate vesting in him, but to 
exclude him from any beneficial interest in the property. In the Privy Council case 
cited above, their Lordships rejected the distinction made by the Madras High Court 
between the murderer's legal and beneficial interests, and said at p. 372 of the report : 
“ The theory of legal and equitable estates is no part of Hindu law and should not be 
introduced into the discussion.” 


Ss. 

98,99 


{x) Eenchaia v. G'lrinialappa (1924) 51 I.A. 
368, 48 Bom. 569, 82 I.C, 966, ('24) A.PC. 
209 ; aflg. 45 Bom. 768, 01 I. C. 294, 
(*21) A. j&. 270 [pat, aunt] ; VedanayaQa 
V. reitam»wi(1904) 27Mad. 591, [mother]; 
Vedammal v. Vedawiyaya (1908) 31 Mad. 
100 (mother); Sfiah Khartum v. Ealan- 
dkar Khan (1000) Punj. Ilcc. no. 74 [half 
motlier] ; Mst. Jind Kaur v. Indar Singh 
(1922) ^ Lah. 103, 67 I.C. 526, (’22) 
A.L. 293. 


iy) (1924) 51 I.A. 368, 48 Bom. 569, 82 I.C. 
906, (’24) A.PC. 200. 

(?) Muhammad Khan v. Sis. Bano (1906) Puni. 
Ilec. no. 41 ; Mat. Jind Kaur v. Indar 
Singh (1922) 3 Lah. J03. 67 I.C. 526, 
(’22) A. L. 293. 

(а) (1924) 51 I.A. 368, 48 Bom. 569, 82 I.C. 

960, (’24) A. PC. 200. 

(б) Gangu v. Chandrabhagabai (1908) 32 Bom. 

273. 



104 


HINDU LAW. 


Ss. 

100-103 


100. Disability as excluding females. — The disabilities 
which exclude a male from inheritance also exclude a female 
from inheritance (c). 

101. Effect of disability.— Where an heir is disqualified, 
the next^heir of the deceased succeeds as if the disqualified 
person were dead (d). The discpialified person transmits no 
interest to his heir (e). 

Illustrations. 

(a) A dies leaving an insane son and a daughter. The daughter ■will take the 
inheritance as if the son were dead. 

(b) **1 dies leaving two brothers B and C. C is insane and has a son D. B alone 
will inherit, for D is the nephew of the deceased, and a nephew cannot inherit while a 
brother is in existence. 

As to murder, see notes to s. 90 above. 

102. Disqualification only personal. — The disability is 
purely personal, and does not extend to the legitimate issue 
of the disqualified heir (/). Nor does it extend, in cases 
governed by tbe Bombay sebool of Hindu lav?, to bis wife or 
widow {g). But adopted sons of disqualified heirs are not 
entitled to this heritable right {h). 

lUustratioyis. 

(а) A dies leaving a son B who is insane frem birth, and a grandson by B. The 
grandson will succeed to A as -4’8 heir. [ Note that the grandson succeeds as tbe heir 
of his grandfather A. He succeeds by his own merits, in other words, in bis o'wn right 
and does not step into his father s place.] 

(б) A dies leaving a son B who is an idiot, a grandson who is the adopted son of 
B, and a daughter. T he daughter will inherit .il’s estate. A son adopted by a disqualified 
heir is not entitled to succession. 

(c) A Hindu governed by the Bombay school of Hindu law dies leaving as his only 
heirs a brother who is disqualified from inheriting and the brother's ■wife. The brother’s 
wife inherits to the deceased, though the brother is disqualified. [ See secs. 64 and 68 
above.] 

According to the pure Hindu law, a son of a convert or outcast born after con^version 
or expulsion from caste is not entitled to inherit. But it has been held by the High 
Court of Allahabad that such a son is entitled to inherit, having regard to the provisions 
of the Caste Disabilities Kemoval Act, 1850 [ see sec, 97, ill. (b) ]. 


103. Disability arising after succession. — Property which 
has once vested in a person by inheritance is not divested 
by a subsequently supervening disability (f). 


(c) Bakiibai v. Manchhabai (1804) 2 Bom. H.C..!. 

(d) Ba6oo Bodknaraxn v. On»rat> (1870) 13 M.I.A. 

(e) MusHt. Bodha Kuer v. Afuegf. Sohodm Kuer 

(1931) 11 Pat. 35, 1321.0. 806. (’31) \ I* 
367. 

(/) Mit. II, 10. 


(ff) Gatigu V. Chandrabhagabai (1908) 32 Bora- 

(A) Mit.n, 10. n. 

(i) Deo Kihhen v. Budh Bralcaih (1883) 5 All. 
509 fF.B.] ; Sank\i v. Puitartima (1891) 
14 Mad. 289, 294; AhUalch v. Bhekhx 
(1896) 22 Cal. 804. 



EXCLUSION FROM PARTITION. 


105 


104. Removal of disability after succession has opened.— 
Where the disability is removed subsequent to the opening 
of the inheritance, the right to inheritance revives, but not 
so as to divest the estate already vested in another person ( j). 

lllusiralions. 

(a) A dies leaving a son who is insane and a widow. On ^’s dea^ the widow 
.succeeds to the estate as his heir. The insanity is cured during the widow’s life. The 
estate being vested in the widow, the son is not entitled to it during her lifetime. After 
the widow’s death, however, the son as the nearest heir of A, is entitled to succeed to 
the estate, so that if A has left a brother also, the son, and not the brother will succeed. 

(b) A dies leaving a son X who i.s insane and a brother B. On .4*8 death B succeeds 
to the estate. The lunacy is cured during ^’s lifetime. X cannot recover the estate 
from By for it is vested in B. Also on 5’3 death the estate will pass to 5‘s heirs, and not 
to Xy for B took as full owner, so that if B dies leaving a son, it will pass to his son. But 
if B leaves no other heir than X (his brother’s son), X will .succeed to the estate not 
aa the heir of A, but as the heir of B. The result is that where the estate of the father 
has passed to a full owner, a son whose disability has been removed cannot claim it as 
his father^ s heir, and^e loses all right to it as such. It is different, however, where the 
estate has passed to a widow or other limited heir who takes only a widow’s interest 
as in ill. (a). 

105. After-bom son of disqualified heir. — Where, after the 
succession has opened, a son is born to a disqualified heir, the 
son is not entitled to inherit so as to divest the estate already 
vested in another {k). 


lUualraiion. 

A dies leaving a son B who is in.sane, a widow, and a nephew. On A’ a death, the 
widow inherits the estate. The widow then dies, and the nephew succeeds to the estate 
as A’s heir. A son, C, is then born to B, and he claims the estate from the nephew. He 
is not entitled to the estate, for it became vested in the nephew on the death of the widow. 


EXCLUSION FROM PARTITION. 


106. Disability and partition. — A disability which excludes 
a person from inheritance also excludes him from a share of 
the joint family property on partition {1). Where a member 
of a joint family had no congenital disqualification and therefore 
had acquired by birth an interest in the joint family property, 
a later supervening disqualification, while it might debar him 
from claiming a partition, would not prevent him from acquiring 
the whole property by survivorship (m) . A Full Bench in Madras 
has recently held (Feb. 1, 1946) that even when the disqualifica- 
tion is congenital, the same result follows (L. P. A. 46 of 1945). 


(j) Mitakshura, chap, ii, sec. 7 ; Deo Kishen v. 

Biidh Prakash (1883) 6 All. 509 (F.B.]. 
(jfe) Ealidas v. Kriehan (1869) 2 Beng. L.R. 
[F.B.l 103 ; Deo Ki&hen v. Budh Prakash 
(1883) 5 All. 509 [F.B.l i Pawadevoa v. 
Venkaiesh (1008) 32 Bom. 455. 

(/) BamSahyey. Ldlla LaUjee{\Si2.)^ Cal. 149; 
Ram Soonder v. Ram Sahye (1882) 8 Cal. 


919. 

(m) Muthusami v. Meenavvmal (1920) 43 Mad. 
464, 55 I.C. 576 ; Mi. Dilraj Kuan v. 
Rikheshwar Bam Dnbe Pat. 712, 

151 I.C. 419, {'34) A. P. 373, (lunacy) ; 
Moolchaiid v. Chahta Devi (1937) All 
825, 170 I.C. 833, ('27) A. A. 605 [F.B.]. 
(leprosy). 


Ss. 

104.10S 





106 


HINDU LAW. 


Ss. 

106409 


There may be sucb a severance of the joint status as would 
put an end to the right of succession by survivorship (»). But 
if the other same coparceners separate their shares and 
disrupt the joint family the lunatic member may become 
separate owner of his share (o). See sec. 98 above. 

107. *Lunacy and partition. — (7) The High Court of 
Calcutta (oJ) has held that a member of a joint family who was 
not horn a lunatic, but is a lunatic at the time of partition, is 
not entitled to claim his share by partition. This is also the_ 
■opinion of the High Court of Allahabad (o2). 

(2) Under the Hindu Inheritance (Removal of Dis- 
abilities) Act, 1928, such a person, not having been a lunatic 
from birth, is entitled to a share. 

\t 

The line of reasoning adopted by the High Court of Caleutta is that ju.st as an heir 
■who is a lunatic when Ihe succest'mn ojmts is not entitled to a share of the inheritance, 
so a coparcener who ts a lunatic at the time of partition is not entitled to a share of the 
joint family property on partition. The line of reasoning followed by the High Court 
of Allahabad is that a coparcener who is not a lunatic at Ihe time of his birth acquires an 
interest from birth in the joint property, and the interest, hai-ing vested in him by 
birth, cannot be divested by his subsequent lunacy. 


1 08. Removal of disability reopens partition. — A coparcener 
who is excluded from a share on partition by reason of a 
disability is entitled, on removal of the disability, to the same 
rights as a son born after partition (p). [Sec. 310]. 

109. A disqualified coparcener having sons. — Where 
a son is born to a disqualified coparcener after the death of the 
ancestor, he is not, according to the Bombay decisions {q), 
entitled to take a share by divesting the coparcener in whom 
the ancestor’s share vested on his death. The High Court of 
Madras has arrived at a contrary conclusion (r). Following 
the principle of this decision the same High Court has held that 
an idiot (even where the idiocy is congenital) who marries and 
has children is a coparcener with his father (though he 
cannot claim a share by partition) and that a will executed by 
the father during the lifetime of the son is invalid (s). 


(n) Venkatestcara v. Mankai/ammal (1936) 69 

Mad. L. J. 410, (’35) A. M. 775. 

(o) Bhaqujati Saran Sintjh v. Parameshicari 

Nandar Singh (1942) AM. 518, 202 I.C. 
227, {’42)A.A.267. 

(01) (1882) 8 Cal. supra; (1862) 8 Cal. 019, 

Supra 

(02) Bhagwali Saran Singh v. Param^skatan, supra. 


(p) Mitakfiliara, chap, ii, s 10, paras. 0-7. 

(q) Bapuji v. Vontiiirang (1882) OBom. 610; 

see also Pofmdetva v. VenktUesh (1908) 
32 Bom. 45.'). 

(r) Krishna v. .S'tfwtt (1880) 9 Mad. 04 {F.D.]. 

(«) Awlrtlin Ors, v, UalhnuivH ArMmaX 

(1942) Mad. 807, 203 X.C. 648, (’42) A.M. 
693. 



EXCLUSION FROM PARTITION. 


107 


Ss. 

109-111 


110. Maintenance of disqualified heirs. — Where a person is 
excluded from inheritance on account of a disability, he and 
'his wife and children are entitled to maintenance out of the 
property which he would have inherited but for the disability 
and where he is excluded from a share on partition, he and 
his wife and his children are entitled to have a provision made 
for their maintenance out of the joint family property {t). 

111. Adoption of religious order. — Where a person enters 
into a religious order renouncing all worldly affairs, his action 
is tantamount to civil death, and it excludes him altogether 
from inheritance and from a share on .partition {u). 

All property which belongs to such a person at the time of renunciation passes 
immediately on his renunciation to his heirs, but property acquired by him subsequent 
to the renunciation passes to his spiritual heirs fs. 58]. A person does not become a 
aanyaai by merely declaring himself a sanyasi or by wearing clothes ordinarily worn 
by sanyasi. He must perform the ceremonies necessary for entering the class of 
sanyasis ; without such ceremonies he cannot become dead to the world (r). 

Sudras. — The Hindu texts applicable to the disinheritance of ascetics do not apply 
to Sudras, unless a usage to that effect is established. The reason is that a Sudra cannot 
enter the order of Tali or Sanyasi {w). 

(() Ram Sahye Lallu Laljeelwa-Z) 8 Cal. Ut); I (1917) 33 Uad. L. J. 63, 40 I. C. 535, 

Ram Soonder v. Ra7n Sahye (1882) 8 j ('IS) A. IE, 402 ; Ramdhan v. Datmir 

Cal. 019, Mitakshara, chap, li, s, lO, (1009; 14 C.W.N. 191, 2 I.C. 385. 

(u) Teeluck v. Shama (1804) 1 W.R. 209. | (fc) Han-ih Chandra v. Atir Mnkmnd (1913) 40 

(v) Baldeo Prasad v. Ari/a Priti Nidki Sabha Cal. 545, 18 I.C. 474 ; Somasundaram 

(1930) 52 All. 789, 124 I.C. 701, (’30) A. v. Vaitkilinga (1917) 40 Mad. 840, 41 

A. 643 ; Kondol Row v. Swamulacaru 1 I.C. 546, ('18) A.M. 794. 


Illustration. 

A, his son By and his brother Cy are members of a Mitakshara joint family. B is 
insane. A dies, and on his death his undivided coparcenary interest passes to his brother 
C by survivorship. After A' a death, a son is born to B. B's son sues C to recover the 
half share of his grandfather A in the joint famiJ}' property. According to the Madras 
decision, he is entitled to the share ; according to the Bombay decision, he is not. 

# 

MISCELLANEOUS. 



108 

CHAPTER X. 

WOMAN’S PROPERTr. 

PARI I—STRIDHANA. 

1. Stridhana according to the Smritis, the Commentaries, and Judicial Decisions 

{55*112-123). 

2. Peculiar features of stridhana (s. 124). 

3. Enumtradon of stridhana (sss. 125-140). 

4. Rights of a woman over her stridhayta (ss. 141-144). 

5. Succession to stridhana (ss. 145-157). 

6. Rules common to all the schooU (ss. 158-165). 

Note. — For a thorough understanding of this chapter the reader is advised first to 
read ss. 8 and 9. He is also advised to learn by heart the names of the various commen- 
taries which are recognized as authorities in the different schools given in sa. 11 and 12. 
Unless he learns these names by heart, he will not be in a position^^to understand what 
follows. He must remember that the subject of stridhana is by far the most difficult 
branch of Hindu law, and be must, therefore, study each section thoroughly before 
proceeding with the next section. The difficulty of the subject may be gauged from 
what Jimuta Vahana says m the Dayabhaga after finishing his discourse on stridhana, 
“ Thus has been explained the most difficult subject of succession to a childless woman." 

1. STRIDHANA ACCORDING TO THE SMRITIS, THE COMMENTARIES 
AND JUDICIAL DECISIONS. 

S. 112 112. Ditferent meanings of stridhana. — The word “ stri- 

dhana ’■ is derived from stri, woman, and dhana, property. 
It ineans, literally woman’s property. It is used, however, 
in different senses in different schools. In order to under- 
stand the precise meaning of stridhana according to the various 
schools, it is necessary to know what kinds of properties were 
recognized as stridhana in the Smritis, that is to say, by the 
Rishis or sages of antiquity (s. 8). We shall, therefore, take 
the reader as briefly as possible through the definitions, or 
rather descriptions of stridhana, as given by some of those 
sages, beginning with Manu and ending with Yajnavalkya 
(s. 113). Next we shall state the definition of stridhana as 
given in the Mitakshara. We shall then see how Vijnaneswara, 
the author of the Mitakshara, seized on one particular word 
in Yajnavalkya s definition of stridhana, (the word, or rather 
the suppletive term, ddya, which means ‘ and the rest ’ or 
et cetera ), and used it as a handle for extending the scope 
of stridhana so as to include in it several descriptions of 
property which were not recognized as stridhana before 
(s. 115). We shall next proceed to consider to what extent the 



STRIDHANA. 


109 


definition of stridhana as given in the Mitakshara has been 
adopted iii the four Mitakshara sub-schools (ss. 116-119). 
Thereafter, we shall deal with the Bengal or Dayabhaga school, 
and note how Jimuta Vahana, the founder of that school, 
boldly rejected the Mitakshara definition of stridhana, and 
formulated a definition of his own (s. 120). Lastly, -Ave shall 
note how the J udicial Committee, has notwithstanding repeated 
warnings given by it that the Courts of British India should 
take the Hindu law not from the Smritis, but from the com- 
mentaries (s. 9), brushed aside the whole of Vijnaneswara’s 
expansion of the word adya (s. 122). After this preliminary 
inquiry, we shall proceed to deal with the subject of stridhana 
in the light of decided cases. 

113. Stridhana according to the Smritis that is, the sacred 
writings of EishiiSorsagesof antiquity. — (i) Stridhana or woman’s 
property is according to Manu, of six kinds, namely : — 

1. Gifts made before the nuptial fire, explained by 

Katyayana to mean gifts made at the time of 
marriage before the fire which is the witness of 
the nuptials [adhyagni]. 

2. Gifts made at the bridal procession, that is, says 

Katyayana, while the bride is being led from the 
residence of her parents to that of her husband 
[adh yavalianiha] . 

3. Gifts made in token of love, that is, says Katyayana, 

those made through affection by her father-in-law 
and mother-in-law [pritidatta], and those made at 
the time of her making obeisance at the feet of 
elders ['padavandanika\. 

4. Gifts made by the father. 

5. Gifts made by the mother. 

6. Gifts made by a brother {Manu, ix, 194). 

All the commentators are agreed that the above is not an 
exhaustive enumeration of stridhana. 

(2) To the above list Vishnu adds — 

1. Gifts made by a husband to his wife on superses- 
sion, that is, on the occasion of his taking another 
wife \adh.ivedanihi\. 


Ss. 

112, 113 



HINDU LAW. 



S. 113 [M Grifts subsequent, that is, says Katyayana, th6se 

1/' made after marriage by her husband’s relations 
f or her parent's relations \anwadheyaha\ 

3. Sulka, or marriage-fee. a term which is used in 
. different senses in different schools [see ss. 147, 

150, 152, 153 and 164]. 

4. Gifts from sons and relations. 

'' /ishnu does not make any specific mention of gifts made at 
the bridal procession. 

_ f) Katyayana mentions the same six kinds of stridhana 
as li anu, and he defines the first three enumerated by Manu, 
and “ gffts subsequent ” and “ sulka ” mentioned by Vishnu. 
Those definitions have already been giv'en above except that 
of sulka. It is of importance to note that Katyayana’s defini- 
tion of adhyagni, gifts before the nuptial fire, and that of 
adhyavahanika, gifts at the bridal procession are wide enough 
to include gifts from strangers. These definitions have been 
accepted by all the schools including the Dayabhaga school, 
with the result that they all recognize as stridhana gifts from 
strangers when they are made before the nuptial fire or at the 
bridal procession. But Katyayana expressly excludes from 
the category of stridhana gifts made by strangers during 
coverture, as also property acquired by a woman during 
coverture by mechanical arts. Thus he says : — 

The wealth which is earned by mechanical arts, or which 
is received through affection from a stranger , is, subject to her 
husband s dominion. The rest is pronounced to be stridhana.” 
{Katyayana, cited in the Dayabhaga, chap. 4, sec. 1, para. 19.] 

Gifts from strangers referred to in the above text are, of 
course, exclusive of gifts made before the nuptial fire and at the 
bridal procession. Such gifts are undoubtedly stridhana. 

The words, “ subject to her husband’s dominion,” indicate 
that the text cited above is evidently not applicable to gains 
of a,Tt or to gifts from strangers either during maidenhood or 
during widowhood. The said words refer to acquisitions and 
gifts from strangers during coverture. Therefore acquisitions 
an gifts from strangers during maidenhood or widowhood 
would constitute stridhana. 



STEIDHANA. 


Ill 


{ 4 ) It is not necessary to notice here the definitions of 
stridhana given by Narada, Apastamba, Vyasa, and Devala 
except that Devala refers to “ food and vesture ” [s. 119] as 
constituting a woman’s stridhana [Colebrooke’s Digest, Book 
V, pp. 471, 478]. 

It may be observed before passing further that almost all 
the Smriti writers mention ornaments given by a husband 
to his wife as her stridhana. 

(5) Yajnavalkya defines stridhana thus : — ‘‘ What vas 
given (to a woman) by the father, the mother, the husband, or 
a brother, or reeeived by her before the nuptial fire, or presented 
to her on her husband’s marriage to another wife, a the 
rest {ddya) is denominated stridhana. So, that which is g 'en 
by kindred, as well as her marriage-fee {sulka) and anything 
bestowed after marriage.” [Note particularly the word “ ddya” 
in the above definition.] 

Though there are about eighty different Rishis (sages) or 
writers of Smritis (institutes), the texts of the abovenamed 
eight rishis are the only ones to which reference is made by the 
Commentators in their disquisitions on the definition of 
stridhana. Those eight sages are: (1) Manu, (2) Narada, (3) 
Vishnu, (4) Katyayana, (5) Apastamba, (6) Vyasa, (7) Devala 
and (8) Yajnavalkya. 

(6') So far, we have noted the different kinds of property 
which are recognized as stridhana by the old sages. It is 
clear from the Smritis of those sages that the term stridhana 
is not used in its etymological sense of “ woman’s property,” 
as comprising any kind of property possessed by a woman 
but that it is used in a technical sense. Summarizing the 
Smriti texts, we may say that it is only gifts obtained by a 
woman from her relations and her ornaments and apparel which 
constitute her stridhana and that the only sorts of gifts from stran- 
gers ivhich come under that denomination are presents before the 
nuptial fire and those made at the bridal procession. But neither 
gifts obtained from strangers at any other time, nor her acquisi- 
tions by labour and skill, constitute her stridhana {x). This is 
stridhana in its technical sense. The Mayukha calls it technical 
stridhana ; it comprises only those kinds of property which are 
expressly called stridhana by the old sages or Smriti writers. 

(.r) See BancrjecS “Hindu Law of Marriage and Stiidhnna,” jtli cd ,p 327. 


S. 113 



112 


HINDU LAW. 


S.114 


114. Stridhana according to the Commentators (ss. 115- 
120). — -W® HOW' proceed to note how the Comtnentators of 
the different schools have dealt with the definitions of stridhana 
as given by the Smiiti writers, and deduced their own 
definitions therefrom. This inquiry is very important, for it is 
well established that whatever may be the law intended to be 
laid down by the Smriti witers, that law must be sought for 
in the writings of the Commentators. In determining what is 
stridhana according to a particular school, the Court has 
to look, to what the Commentators, who are authorities in 
that pa^fecular school, have said on the subject (y). It is not 
open to a Judge to put his own interpretation on the Smriti 
texts. If the texts have received a particular interpreta- 
tion in a particular school, and that interpretation has 
been accepted as the law of that school, he must take it as 
the law of that school and administer it as such (z) [s. 9]. 
To this extent then the Smritis have been pushed into the 
background. 

The Mitakshara occupies the foremost position among all 
the CommetUaries. It is universally accepted by all the schools, 
except the Bengal school, as of the highest authority. Even 
in Bengal it is received as of high authority yielding only to 
the Dayabhaga in those points where they differ. It is a 
coromentary on the Yajnavalkya Smriti or the institutes of 
Yajnavalkya. The Dayabhaga wherever it differs from the 
Mitakshara prevails in Bengal ; but in matters on which 
the Dayabhaga is silent, the Mitakshara is followed even in 
Bengal. These two works gave rise to two schools, namely. 
(1) the Mitakshara school, and (2) the Dayabhaga or Bengal 
school. 

The Mitakshara school is sub-divided into four schools, 
namely, the Benares, Bombay, Mithila and Madras schools. 
These four schools have their particular treatises and com- 
mentaries which control certain passages of the Mitakshara. 
All these schools acknowledge the supreme authority of the 
Mitakshara, but they follow their own particular treatises 
where those treatises specifically differ from the Mitakshara. 
ihe treakses which have been accepted as special authorities 
m each of th ese four schools are mentioned in section 12. 

(i,) S.;™™ V. L,uc?,mana namalin^o 

I (1868) 12 M.T.A. 397, 430. 



STRIDHANA. 


113 


We now proceed to consider definitions of stridhana as 
given by the Commentators. This forms the subject-matter of 
sections 115 to 120. 

115. Stridhana according to the Mitakshara. — The follow- 
ing is the definition of stridhana as given by Vijnaneswara 
in the Mitakshara : — 

“ That which was given by the father, by the mother, by 
the husband, or by a brother ; and that which was presented by 
the maternal uncles and the rest at the time of wedding before 
the nuptial fire ; and a gift on a second marriage or fatuity on 
account of supersession ; and, as indicated by the word ad^a 
(and the rest), property obtained by— 

(1) inheritance; 

(2) purchase ; 

(3) partition ; 

(4) seizure, e.g., adverse possession (a) ; 

(5) finding ; 

all this is stridhana according to Manu and the rest.” 

It will thus be seen that the first portion of the above 
definition is a reproduction of the definition of stridhana as given 
by Yajnavalkya. The second part of the above definition is 
the expansion by Vijnaneswara of the word adya which occurs 
in Yajnavalkya’s definition of stridhana, so as to include in 
stridhana five distinct kinds of property which were not recogniz- 
ed as stridhana by the early sages. Neither Manu nor the other 
sages ever recognized those kinds of property as stridhana. 
Manu recognized only six kinds of stridhana, but this Vijna- 
neswara explains by saying that all that was meant by Manu’s 
text is that the number cannot be less than six, not that it 
cannot be more than six. And, further, he expressly says that 
the term stridhana comforms in its import with its etymology, and 
is not technical. The result is that according to the Mitakshara, 
property of any description belonging to a woman is stridhana. It 
may be a gift from relations or a gift from strangers (6). It 
may be property acquired by inheritance, or property obtained 
on partition. It may be her earnings (6) or it may be property 

(o) Subramanian V. Amnachelam (1905) 28 I (M Sa(«ii no v. iulcftmaiio (1898) 21 Mad. 100, 

Mad. 1, 7. I 103-105. 


Ss. 

114, 115 



114 


HINDU LAW. 


St. acquired by her from any other source [Mitakshara, chap. 2, 
115»il7 sec. 11, paras. 2-4]. 

Referring to the above definition, the High Court of Madras 
said ; “ It is scarcely necessary to say that Vijnaneswara’s 
statement that stridhana is not to be understood in a technical 
sense was not mere philological observation. By laying down 
that proposition, Vijnaneswara and other great commentators, 
who followed him, succeeded in effecting a beneficial change 
in the archaic Smriti law and placed women almost on a 
footing of equality with men as regards the capacity to hold 
property ” (c). 

[It may just as well be noted here that since the decision of 
the Privy Council in 1912 [s. 122], the whole of Vijnaneswara’s 
“ expansion ” has been discarded]. 

116. Stridhana according to the Bombay School. — We next 
turn to the four divisions of the Mitakshara school (s. 12). 
It will be seen that some of them adopt the Mitakshara defini- 
tion while others do not. 

The Mayrukha, which is held in high esteem in the town of 
Bombay, in Gujarat and in the North Konkan, would seem to 
adopt the definition of stridhana as given in the Mitakshara 
[s. 115]. 

For the purposes of succession, the Mayukha divides 
stridhana into two classes, namely, (1) technical, and (2) non- 
technical. Technical stridhana refers to the kinds of property 
expressly recognized as stridhana by the old sages [sec. 113, 
sub-sec. (6)], that is to say, (1) gifts from relations made at any 
time, and (2) gifts from strangers if made before the nuptial fire 
or at the bridal procession. Non-technical stridhana comprises 
every other kind of property belonging to a woman. This is a 
classification peculiar only to the Mayukha [Mayukha, chapter 
iv, sec. 10, paras. 1-2 and 26]. It is not followed in any other 
part of the Bombay Presidency where the Mitakshara alone 
is the governing authority. 

117. Stridhana according to the Benares School.— The 
Viramitrodaya, a commentary held in high esteem in the 
Benares school, adopts and supports the definition of stridhana 
given in the Mitakshara. 


(c) halrmma v Lutchmana (18«S) 21 Mad. 100, 103-104. 



STRIDHANA. 


115 


118. Stridhana according to the Madras School.— The 
principal treatises of the Madras school are the Smriti 
Chandrika and the Parasara Madhavya. These treatises 
do not give any definition of stridhana. Nor do they adopt 
the definition of stridhana given in the Mitakshara. The 
Smriti Chandrika enumerates certain kinds of property as 
stridhana, being the kinds of property recognized as stridhana 
by the Smriti writers. The Parasara Madhavya puts its own 
interpretation on the suppletive term adya in the text of 
Yajnavalkya, and says that it refers to property purchased by 
a woman with gifts made to her at the bridal procession, etc. 


Besides the two works mentioned above, there are other 
works which are of more or less authority in the Madras school 
namely the Sarasvati Vilasa and the Vyavaharanirnaya. These 
four treatises, however, do not agree with each other on all 
points, least of all on questions relating to stridhana. This has 
led the High Court of Madras to hold that in determining 
the question whether a particular kind of property is 
stridhana or not, the Court should follow the comprehensive 
definition of stridhana given in the Mitakshara and hold 
that it is stridhana, unless it is shown that the said treatises 
are unanimous in holding that it is not stridhana (d). It 
has accordingly been held by that Court following the 
definition of stridhana given in the Mitakshara, that money 
given absolutely to a woman for her maintenance, and 
purchases made with such money, constitute her stridhana 
and descend to her heirs (e). Similarly, it has been held that 
gifts from strangers, though made during coverture, consti- 
tute her stridhana, there being no consensus of opinion among 
the said treatises that such gifts are not to be regarded as 
stridhana (/). As to a wife’s earnings, the same Court has 
expressed a strong opinion that they are her stridhana and 
descendible to her heirs (g). A similar opinion has been 
expressed as to property acquired by a woman by “ seizure,” 
that is, adverse possession, and that acquired by finding {h). 
Property inherited by a woman, however, stands on a 
different footing, for as to that it has been settled by a long 
line of decisions that it is not stridhana according to the Madras 


(rf) Salemma v. LiUchmana (1898) 21 Mad. 100, 
103-104. 

(tf) Subramanian v. Arunachelavi (1905) 28 
Mad. 1, 


(/) 21 Mad. 100, supra. 

(i?) 21 Mad. 100, 105, supra. 
(A) 28 Mad. 1, 7, supra. 


S.118 



116 


HINDU LAW. 


Ss. school. As to property obtained by a woman on ■partition, 
118, 119 no question can arise in the Madras .school as to whether or 
not it is stridhana, for the practice of allotting shares to a 
woman on partition has become obsolete in the Madras 
Presidency (i). This completes the list of the additional sorts 
of stridhana specifically enumerated in the Mitakshara [s. 115]. 
In fact, the tendency of the Madras High Court is to follow 
the Mitakshara in determining whether a particular kind of 
property is stridhana or not. Even as to rules of succession 
to stridhana, that Court has followed the Mitakshara where 
the said foirr commentaries are silent {]) or do not all agree 
with each other {k). Referring to the definition of stridhana 
given in the l\Iitakshara that Court said ; ‘‘It is scarcely 
necessary to saj’ that Vijnaneswara's statement that stridhana 
is not to be understood in a technical sense>. was not mere 
philological observation .... A departure from the law, 
laid down by such a high authority, must not be made unless 
supported by adequate grounds ” (1). And as to the rules of 
succession to stridhana, the same Court said : “ While the other 
commentators, in their attempt to reconcile the various 
Smritis. complicate the matter by prescribing different linos 
of devolution — those too not complete — according to the 
class of stridhana to which the paiticular property belongs, 
the Mitakshara lays down rules which are easy of application, 
complete in themselves and on the whole equitable (m).” 

The position, then, as regards the Madras school, so far as 
the Madras decisions go. is this that the Mitakshara definition 
of stridhana is to be applied in every case, unless the com- 
mentaries prevalent in that school unanimously exclude the 
kind of property in cjuestion from the category of stridhana. 
Since the decision, however, of the Privy Council, in 1912 
(s. 122), the whole of Viinane.swara's “expansion” [s. 115] 
has been discarded, and such of the Madras decisions which 
recognized as .stridhana any description of property comprised 
in the “ expansion ” cannot now be accepted as good law. 

119. Stridhana according to the Mithila School. — The 
Vivada Chintamani is the leading authority of the Mithila 

(i) SuhTcimaiuan \. Aninachelam (1905) 28 I Afuthappudayan v. Arntnani (1808) 21 

Had 1 , 8 . Mnd.38. 

0) Salemrm v. Luiclimina (1898) 21 Mad, , main. 

100 104. Mad. 100, 103*104 nupra. 

(k) Saju’v. Atmrmm (1906) 29 Mad. 358, (m) 21 Mad. 100, 104, 105, 



BTKIDHANA. 


117 


school. This work also does not give any definition of stri- 
dhana, but it enumerates eleven kinds of property, namely : — 

(1-6) the six kinds as enumerated by Manu and defined 
by Katyayana [s. 113, sub-s. (7)] ; 

(7-9) gifts made on supersession, gifts subsequent, and 
sulka [s. 113, sub-s. (2 )] ; 

(10) ornaments ; and 

(11) “ food and vesture ” mentioned by Devala and 
interpreted to mean “ funds appropriated to a 
woman’s support ” [s. 113, sub-s. (3)]. 

Gifts from strangers made before the nuptial fire and 
at the bridal procession are also recognized as stridhana. The 
author then concludes his enumeration by saying : “ These 

are the several kinds of stridhana.” It will thus be seen that 
the Vivada Chintamani confines stridhana within the definitions 
of the Smriti writers and excludes property acquired by 
inheritance and the other kinds of property mentioned as 
stridhana in the Mitakshara («). {Vivada Chintamani, P.C. 
Tagore’s Translations, pp. 256-263.] 

120. Stridhana according to the Dayabhaga or Bengal 
School. — The Dayabhaga of Jimuta Vahana is the leading 
authority of the Bengal school. To understand the definition 
of stridhana as given in the Dayabhaga it is important to 
note the following two propositions which have been accepted 
by all the Mitakshara sub-schools : — • 

(a) every kind of stridhana belonging to a woman passes 
on her death to her heirs ; 

(b) but every kind of stridhana cannot be disposed of 
by a woman at her pleasure. 

The only kinds of stridhana which she can dispose of at 
her pleasure and without her husband’s consent are gifts fro^n 
relations. She cannot dispose of any other kind of stri- 
dhana such as gifts from strangers, or property acquired 
by her hy mechanical arts, without her husband’s consent 

(n) Bhugioandceay. Myna M.I.A. 4S7, 511. 


Ss. 

119, 120 



118 


HINDU LAW. 


S. 120 [s. 143]. This is based upon certain texts of Katyayana and 

Narada. The said texts run as follows : — • 

(1) “ What a woman, either after marriage or before it, 
either in the mansion of her husband or of her father, receives 
from her lord or her parents, is called saudayika (gift from 
affectionate kindred) ; and such a gift having by them been pre- 
sented through kindness, that the woman possessing it may live 
well, is declared by law to be her absolute property. The abso- 
lute exclusive dominion of women over such a gift is perpetually 
celebrated ; and they have power to sell or give it away as they 
please, even though it consists of lands and houses. Neither 
the husband, nor the son, nor the father, nor the brother, has 
power to use or to alienate the legal property of a woman " — 
Katyayana [Colebrooke’s Digest, Book V., p. 475]. 

(2) ■■ The wealth which is earned hy mechanical arts, or 
which is received through affection from a stranger, is subject 
to her husband's dominion. The rest is pronounced to be 
stridhana ” [ Katyayana, cited in the Dayabhaga, chap. 4. 
sec. 1, para. 19]. 

(3) “ Property given to her by her husband through pure 
affection she may enjoy at her pleasure after his death, or may 
give it away, except land or houses ’’ — Narada [Colebrooke's 
Digest, Book V.. p. 477]. 

Let us now turn to the Dayabhaga of Jimuta Vahana. On 
referring to that work it will be seen that Jimuta Vahana first 
examines the various definitions, or rather descriptions, of 
stridhana given in the old Smriti texts [s. 113]. He alters the 
text of Yajnavalkya by substituting the expletive eva for 
ddya so as to confine the term stridhana to the kinds of property 
specifically enumerated by Yajnavalkya [s. 113, sub-sec. (5)]. 
He rejects the definition of stridhana given in the Mitakshara. 
and defines stridhana in these words 

That alo7ie is stridhana ivhich she [a worna^i) has power to 
give, sell, or use independently of her husba^id’s control.’’ 

Jimuta Vahana, however, does not say what kinds of 
property can be disposed of by a woman without her hus- 
band s consent but immediately after defining stridhana, he 
cites the texts of Katyayana and Narada quoted above. In 



STRIDHANA, 


119 


the light of those texts, and from what more he says in the 
chapter on gtridhana we arc in a position to say — 

(1) affirmatively, that all gifts from relations constitute 
■ stridhana, except a gift of immoveable property made by the 

husband ; and that gifts from strangers also constitute stridhana 
if made before the nuptial fire or at the bridal procession ; 

(2) negatively, that the following properties are not 
stridhana, namely — 

(i) property inherited by a woman ; 

(ii) property obtained by her on partition ; 

(iii) gifts from strangers, except those made before the 

nuptial fire or at the bridal procession ; and 
•* 

(iv) property acquired by her by mechanical arts (o) 
[Dayabhaga, chap. 4, sec. 1]. 

121. Distinction between Mitakshara stridhana and 

Dayabhaga stridhana.— In Sheo Shankar v. Debi Sahai (p), 
their Lordships of the Privy Council referring to the 
term stridhana said : “ The Bengal school of lawyers have 

always limited the use of the term narrowly, applying 
it exclusively, or nearly exclusively, to the kinds of woman’s 
property enumerated in the primitive sacred texts. The 
author of the Mitakshara and some other authors (that is 
of the Viramitrodaya and the Mayukha) seem to apply the 
term broadly to every kind of property which a woman can 
possess, from whatever source it may be derived.'^ 

122. The Privy Council and Mitakshara Stridhana. — 

Having dealt with the definitions of stridhana as given by the 
Commentators, we proceed to consider how far the definition 
of stridhana as given in the Mitakshara has been accepted by 
the Privy Council. 

( 1 ) Property inherited by a woman. — woman may inherit 
the ordinary property of a male, that is of her husband, father, 
son, etc. She may also inherit the stridhana of a female, that 
is of her mother, mother’s mother, or daughter. Both these 
kinds of inherited property are stridhana according to the 

(o) Rum Gopal v. Xiiram (1900) 33 Clil. I (p) (1903) 25 All. 108, 30 I. A. 202. 20,-) 200. 

319.320. I 


Ss. 

120422 



120 


HINDU LAW. 


S.122 


Mitakshara [s. 115], but the Privy Council has held as to both 
these kinds of property that they are not stridhana. In 
one set of cases before that tribunal, the question was whether 
property inherited by a widow from her husband, that is 
property inherited by a woman from a male, was her stridhana. 
Their Lordships held that it was not, and that on her death it 
passed not to her heirs, but to the next heir of her husband ( 5 ). 
In the other set of cases the question was whether stridhana 
inherited by a daughter from her mother, that is property 
inherited by a woman /rom a female, was her stridhana. Their 
Lordships held that it was not, and that it did not descend 
to her (daughter’s) stridhana heirs, but to the next heir of the 
mother (r). 


The cases referred to above were cases from the Benares 
school. The law as now settled in the Madras, Mithila and 
Bengal schools is the same, that is to say that property 
inherited by a w’oman, whether from a male or from a female, 
does not constitute her stridhana in any case [ss. 168-169]. 
According to the Bombay school, however, it becomes her 
stridhana in all cases, except where the property is inherited 
by a widow, mother, or other female who enters the gotra 
(family) of the deceased by marriage [ss. 170-171]. This 
rule is firmly established in Bombay by a long current of 
decisions, and it remains unaffected by the decisions of the 
Privy Council referred to above (s). [See s. 130]. 

(2) Share obtained by a tvidow on partition . — As to the 
share obtained by a widow on partition of the joint family 
property, it has been held by the Privy Council in Behi 
Mangal Prasad v. Mahadeo Prasad (t), that it is not her 
stridhana even under the Mitakshara law. It does not 
therefore pass on her death to her stridhana heirs, but 
reverts on her death to the next heirs of her husband 
in the absence of an express agreement amongst the co-sharers 
to the contrary. 


(<j) lihtojivandeen \. ilyna Baec (1867) 11 M. 
I. A. 487 ; Thukor Deyhee v. Aat 

Baluk Ram (1860) 11 M.I.A, 139. 

(r) Skeo Shankar v. Debi Sahax (1903) 35 All 
468, 30 I. A. 202, as explained In Svina- 
manian v. Arunnchelam (1905) 28 3Iad. 
1, 9-12 ; Rain Kah v. Uopal Dei (1936) 
48 AU. 648, 652-653, 96 I.C. 757, (’26) 
A.A. 557, and Uuknm Chand v. Siial 
Prasad (1028) 50 AU. 232, 236, 237, 
107 I.C. 244, (’28) A.A. 52; Shea 

Pertab v. The Allahabad Bank (1003) 25 


AU. 470, 30 l.A. 200 . (Riya Din v Badu 
Smqh (1943) All. 230. 

{«) See (1903) 25 All 468, 474, 30 l.A 202, 
eiipra\ lialwant Rao v. Bajt Rao (1920) 
47 l.A. 2J3, 223, 48 Cal. 30, 57 I.C. 545. 
(’21) A. VC. 59; Bhau v. Raghunath 
(1006) 30 Boro. 220, 230*237 ; Gadadhar 
V. Chandrabhagabai (1893) 17 Born. 090, 
708 [P.B.]; Ke^BCrbai v. Jlunsrai (1900) 
30 Bom. 431, 452. 

(0 (1912) 34 AU. 234, 39 l.A. 121, 14 I.C. 1000 



STRIDHANA. 


121 


(3) It will be noted that property acquired by a woman 
/ by inheritance and that acquired by her on partition are two 
of the five additional sorts of stridhana comprised in Vijnane- 
swara’s “ expansion ” of adya [s. 115]. As to both these it has 
been held by the Privy Council that they do not constitute 
her stridhana in such sense that on her death it passes to her 
stridhana heirs. The true view would now appear to be that 
the whole of Vijnaneswara’s expansion has been discarded. 

123. The schools and stridhana. — The following is a sum- 
mary of secs. 113 to 122 : — 

(1) The Smriti writers confine stridhana to gifts from 
relations made at any time, and to gifts from strangers made 
before the nuptial fire and at the bridal procession. This is 
called technical stridhana [s. 113, sub-s. (6)], and it is stridhana 
according to all the schools. 

(2) Property acquired by a female during maidenhood or 
widowhood, though it be acquired by gift from strangers or by 
mechanical arts, constitutes her stridhana according to all the 
schools [ss. 127-132]. 

(3) Though according to the Mitakshara every kind of 
property howsoever acquired by a woman would appear to be 
her stridhana, the effect of the decisions of the Privy Council 
referred to in section 122 is to curtail the definition of stridhana 
as propounded by Vijnaneswara by excluding from it in effect 
the five additional sorts of stridhana enumerated by him 
[s. 115]. 

(4) The law of the Benares school is that stated in sub- 
sec, {3) [ss, 117 and 122], 

(5) Every description of property which is stridhana 
according to the Mitakshara as interpreted by the Privy Council 
would seem to be stridhana according to the Bombay school. 
That school also recognizes as stridhana every kind of property 
inherited by a woman, except where the woman inheriting the 
property is a widow, mother, or other female who entered 
the gotra of the deceased owner by marriage [s. 130], See 
ss. 116 and 122. 

(6) Having regard to the Madras decisions set forth in 
sec. 118, it would seem that every description of property 


Ss. 

122,123 



122 


HINDU LiVVV^. 


S. 123 which is stridhana according to the Mitakshara as interpreted 
by the Privy Council, is stridhana according to the Madras 
school. 

(7) The Mithila school confines stridhana within the 
definitions of the Simiti witers ; it does not recognize 
non-technical stridhana [s. 119]. 

(8) According to the Dayabhaga or Bengal school, that 
alone is stridhana which a woman has power to dispo.se of 
without the consent of her husband [s. 120]. 

(9) Property which comes within any of the descriptions 
of stridhana is not the less stridhana, because it happens to be a 
kind of property wdiich was not known to the Hindu law when 
the Commentaries were written. “ We are not prepared,” 
said the High Court of Calcutta in a Dayabhaga case, “ to 
hold that the rules of Hindu law are so inelastic as to be 
capable of application only to such descriptions of interests in 
property as formed the subject-matter of transactions at the 
time when the rules were first formulated.” Thus a gift by 
a father to his daughter is stridhana according to all the 
schools ; and it is not the less stridhana, because the gift i.s 
of a maurasi moharari lease, a sort of interest in property 
unknown to the Hindu law when the Dayabhaga was written (a). 

(10) It will be seen from what is stated above, that the 
stridhana of the Bombay school is more extensive than the 
stridhana of every other school, for the Bombay school, while 
recognizing as stridhana every kind of property which i.s 
.stridhana according to the other schools, recognizes in certain 
cases inherited property also as stridhana, which no other 
school does. 

To say of a property possessed by a woman that it is her stridhana is the* same tiling 
as saying that she is thafull owner thereof. To say that the stridhana of the Dayabhaga 
school is less comprehensive than that of the Bombay school, is equivalent to saying 
that the Dayabhaga school does not recognize the ownerahii^ of women in as many 
kinds of property as the Bombay .school ; but though this is so, femalen governed by the 
Daj’^abhaga school possess an advantage which females .subject to the Mitakshara law 
do not. For while according to the Mitakshara law, tlie interest of a coparcener in 
ancestral property passes on his deatli to his coparceners by eurrivorsliij), according 
to the Dayabhaga law, it pas.se.s to his heir by succession. The result is that according 
to the Mitakshara law, a widow, daughter, mother, etc., can never succeed to ancestral 
property so long as a single coparcener is m existence ; while according to the Dayabhaga 
law, their succession in not impeded by the existence of any coparcener. Thus if two 

{n) Ham v. .Vurutn (IJIOO) 33 I'al. 31.'>, ;i l!) 



STRIDHANA. 


123 


brothers A and B are joint, and A dies leaving a widow, or a daughter, or a mooher, 
according to the Mitakshara law, A's interest in the joint property will pass on his death 
not to his widow, or daughter, or mother, but to B by survivorship, while according 
to the Dayabhaga law, it will pass to his widow, daughter or mother as the case may be, 
though, it may be noted, none ol them takes as a, full owner [ss. 177-180]. 

II.— SPECIAL FEATURES OF STRIDHANA. 

124. Peculiar features of Stridhana. — A Hindu female may 
acquire property from various sources. She may acquire it 
by gift, or by inheritance, or on partition. She may also 
acquire it by her own labour and skill. But all property 
acquired by her is not stridhana. Whether a particular kind 
of property is stridhana or not, depends on — 

(1) the source from which the property was acquired ; 

(2) her status at the time of acquisition, that is, whether 

she acquired it during maidenhood, coverture, or 
widowhood ; and lastly, 

(3) the school to which she belongs. 

What is stridhana, and what is not, according to the differ- 
ent schools, we have already stated in section 123 and the 
earlier sections. We shall elucidate this subject still further 
by treating it from a practical point of view, that is, by 
enumerating all possible descriptions of property that may be 
lawfully acquired by a Hindu female, and dealing with each 
one of these descriptions separately in separate sections, 
and stating which of them are stridhana and which 
are not according to the different schools [ss. 125 to 135]. 
In the meantime it may be asked, what is the practical 
importance of the distinction between property which is 
stridhana and property which is not stridhana ? The answer 
is that the distinction is important in two ways ; first, as 
regards succession and, secondly, as regards the power of 
alienation. The distinction may be explained as follows ; — 

1. Stridhana of every description belonging to a woman 
passes on her death to her heirs [.ss. 145-157]. It is not so 
with regard to woman’s property which is not stridhana. 

2. Stridhana belonging to a woman is property of which 
she is the absolute owner, and which she may dispose of at 
her pleasure, if not in all cases during coverture, in all cases 


Ss. 

123,124 



124 


HINDU LAW. 


Ss. during widowhood [ss. 141 to 144]. But a woman is not the 
124, *125 absolute oivner of property which is not her stridhana, nor can 
she dispose of it at her pleasure even during widowhood. 
She is merely a qualified owner of such property in other words 
she takes only a limited interest in the property, the nature 
and extent of which depend on the character of the property. 

The foliowing diagram may perhaps elucidate the subject still further * 
Woman’s Property 

I 


Stridhana Non-St ridhana 

By “ woman’s property ’* in the above diagram is meant property acquired by 
a woman whatever may be the source from which it is acquired*. Woman’s property 
may be divided into two classes, namely, stridhana and non-stridhana. The distinction 
between stridhana and non-stridhana has already been noted above. The feature 
common, to both stridhana and non-stridhana is that they are both “ Woman’s property, 
that is property of which the ownership is in the woman, with this difference that her 
ownership in stridhana is absolute, while in non-stridhana it is limited. Thus property 
acquired by a widow by inheritance from her husband, though it is her property in the 
sense that she is entitled to its possession and to enjoy the income of it, is not her 
stridhana. She cannot alienate it except in the special cases mentioned in ss. 178 and 
179. But a gift made to a woman by her father constitutes her stridhana and she 
can sell it, mortgage it, make a gift of it, or dispose of it by will. 

Ill,— ENUMERATION OF STRIDHANA. 

125. Sources of woman’s property. — A Hindu female 
may acquire property from diverse sources. The following is a 
list of the several descriptions of property that may be lawfully 
acquired by a Hindu female, prepared with special reference 
to the source of acquisition : — 

(1) Gifts and bequests from relations [s. 126]. 

(2) Gifts and bequests from strangers [s. 127]. 

(3) Property obtained on partition [s. 128]. 

(4) Property given in lieu of maintenance [s. 129]. 

(5) Property acquired by inheritance [s. 130]. 

(6) Property acquired by mechanical arts [s. 131]. 

(7) Property obtained by compromise [s. 132]. 

(8) Property acquired by adverse possession [s. 133]. 

(9) Property purchased with stridhana or with savings 

of income of stridhana [s. 134]. 



STRIDHAtTA. 


125 


(10) Property acquired from sources other than those 
mentioned above [s. 135]. 

Bequests stand on the same footing as gifts (v). 

We now proceed to consider which of the above descrip- 
tions of property constitute stridhana, and which do not accord- 
ing to the different schools. 


*126. Gifts and bequests from relations. — Property given 
or bequeathed {w) to a Hindu female, whether during maiden- 
hood, coverture, or widowhood, by her parents and their 
relations, or by her husband and his relations (x), is stridhana 
according to all the schools, except that the Dayabhaga does 
not recognize immoveable property given or bequeathed by a 
husband to his wife as stridhana {y) [s. 120]. 

Gifts from relations. — Gifts from relations constitute tecimical ” stridhana [a. 113^ 
sub-a. (6)], These gifts bear various names according to the occasion on which they are 
made. Those names are — 

(1) adkyagni, that is, gifts made before the nuptial fire ; 

(2) adhyavahanikat that is, gifts made at the bridal procession ; 

(3) padavandanika, that is, a gift made to a woman when she makes obeisance 
at the feet of elders ; 

(4) anwadkeyaka, that is, gifts made after marriage ; 

(5) adhivedanika, that is, gifts made on supersession ; 

(6) sulka, that is, gratuity or marnage-fee; 

(7) pritidatta, that is, gifts of affection made by the father-in-law or mother-in-law ; 

(8) bhartridaita, that is, gifts from the husband. 

The above terms are explained in sec. 113, sub-secs. (1) and (2). 

See sec. 401, “ Gifts and bequests to widows, daughters, and other females.” 


127. Gifts and bequests from strangers. — A gift may be 
received by a Hindu female from a stranger, that is, from 
one who is not a relation, (1) during maidenhood, or (2) at 
the time of marriage, or (3) during coverture, or (4) during 
widowhood. 


(v) Judoo Nath V. Busaunl Coomar (1873) ID 

W. R. 264. 

(w) (1873) 19 W. R. 204, supra (bequest from 

father) ; Damodar v. Par7nanandaii (1883) 

7 Bom. 1.'),} (bequest from husband) ; 
Basanta Kumari v. Kamxkshya (1906) 33 
Cal. 23, 32 I. A, 181 (bequest from ' 


brother) ; Atul v. Sanyasi (190o) 32 Cal. 
1051 (bequest from sou). 

(x) See S^am^osu'a v. Vcnkataswara (1908) 31 
Mad. 179. 

(l/) See Dayabhaga, ch. 4, sec. 1, paras 18 and 
21. See also I'enkala v. Veniaia (1877) 
1 Mad. 281, 286, 287. 


Ss. 

125-127 



126 


HINDU LAW. 


S.127 


(1) Property given or bequeathed to a Hindu female by 
strangers during maidenhood is her stridhana according to all 
the schools ( 2 ). 

The principal text which excludes gifts from strangers from the category of 
stridhana is that of Katyayana. It runs thus ; — 

“ The wealth which is earned by mechanical arts, or which is received through affec- 
tion /roui fl is swtyecl /o Aer Awsfeurid’s The rest is pronounced to 

be stridhana." 

The words “ subject to her hnshand's dominion.” in the above, text show" that the 
text does not apply to acquisitions or gifts from strangers during maidenhood or during 
widowhood. The words refer to acquisitions and gifts from strangers during cnvcrlurc 
only ( 2 ). 

(2) Property given by strangers to a Hindu female before 
the nuptial fire or at the bridal procession is stridhana according 
to all schools. Such property, like property given by rela- 
tions, constitutes “technical” stridhana [s. ,113, sub-sec. (6)]. 

(3) Property given or bequeathed by strangers to a 
Hindu female during coverture is stridhana according to the 

. Bombay, Benares, and Madras (a) schools [ss. 116-118], but not 
according to the Mithila and Dayabhaga schools [ss. 119-120]. 
But even according to the Dayabhaga, such property becomes 
her stridhana after her husband’s death, as appears from the 
fact that the Dayabhaga recognizes the ownership of the icife 
in such property even during coverture, though it says it i.s 
not her stridhana because it is subject to her husband’s control. 
It is difficult to say whether, according to the IMithila school, 
such property becomes stridhana after the death of the husband. 

Dayabhaga school, — The Dayabhaga firbt cites the text of Katyayana relating to 
gifts frc:n strangers and acquisitions by mechanical arts quoted above, and then say*^ : 
“ He (the husband) has a right to take it, even though no distress exists. Hence though 
the property is hers^ it does not constitute stridhana because she has no independent 
power over it : ’’ Dayabhaga, chap, 4, .sec. 1, para. 20. 

The meaning of the above text is that though the ownership of the property is in 
the wife, it is not her .stridhana for, according to the Dayabhaga definition of stridiian«a, 
that alone is stridhana which a woman can dispose of imlependenlly of her husband’s 
consent. On this point Jagannatha says : — 

“ But according to Jimuta Vahana, Raghunandana, and the rest, the wife is the soh 
owner of wealth acquired by her even during coi'erlure ; yet she has not independent 
power over it so long as her husband lives. It must therefore be understood, that the 
legal heirs of stridhana succeed also to this wealth, even if the wife dies in the lifetnm; 
of the husband.” Colebrooke’s Digest. Book V. 515, commentary, Vol. II, p. h-S. 

(a) Salemma v, Lutchmana (181)8) lil Mad. 100 
a case of service imiiii eufranchlBcd b: 
Government in favour of a married woina] 
during coverture. 


( 2 ) See Dayabhaga, chap, 4, sec. 1 , para. 20 
and Venkata v. Venkata (1877) 1 Mad 
281, 286. 



STRIDHANA. 


127 


Mithila school . — It is difficult to say whether according to the Mithila school a gift 
from a stranger received during coverture becomes the stridhana of the wife on her 
husband’s death. For it may be that according to that school the ownership of the 
property passes to the husband immediately the wife receives it, in which case it becomes 
part of the husband's property, and descends to his heirs on his death. The author 
was of the opinion that such a gift becomes the stridhana of the woman after 
her husband’s death. The trend of modern decisions is to follow the Mitakshara, unless 
the special commentaries of the school in question expressly declare that a particular 
kind of property is not stridhana. 

(4) Property given (b) or bequeathed (c) to a Hindu 
female during ividoivJiood is her stridhana. Where a father 
made a gift of certain properties to his widowed daughter 
for life with remainder to his heirs, the rents and profits 
accruing from such properties, including all accumulations 
thereof are her stridhana, though the corpus is not (d). 

See notes to sub-section (1). 

128. Share ^on partition. — (7) According- to the Daya- 
bhaga school, where a share is allotted to a mother or father’s 
mother on partition of joint family property, it is given to 
her by way of provision for her maintenance for which the 
family property is bound. It is not, therefore, her stridhana, 
and it does not pass on her death to the stridhana heirs, but 
reverts to the sons or grandsons out of whose portion it was 
taken out (e). 

{2) Even in cases governed by Mitakshara, the Privy 
Council have held in Debi Mangal Prasad v. Mahadeo Prasad (/) 
that a share allotted to a mother on partition is not her stri- 
dhana, but stands on the same footing as property inherited 
by her from her husband {g), and that on her death it passes 
not to her stridhana heirs, but to the sons or grandsons. 

{3) According to the Mithila school, the share allotted 
to a woman on partition is not stridhana (h). The reason is 
that it is not one of the eleven kinds of stridhana enumerated 
in the Vivada Chintamani [sec. 119]. 


(b) Brij Indar v. Janki Koer (1877) 5 I. A, 1, 

1 Cal. L. R, 318 [ property acquired by a 
widow under a sannad from Government, 
which conferred upon her a full proprie- 
tary and transferable right in the proper- 
ty, is her stridhana. It was a Mitakshara 
case, hut the Dayabhaga has been freely 
cited m the judgment of the Privy 
Council ]. 

(c) Bai Narmada v. Bhagxcantrax (1888) 12 

Bom. 505. 

(d) Mohinee Mohan Basu v. Bash Bxharee 

Ghosh (1937) 2 Cal. 97, 109 I.C. 519, 
(*37) A.C. 229. 

{() Sorolah \. Bhoobiin (1888) 15 Cal. 292; Bridoy 
Knnl V. Behiiri Lai (1900) 11 C. W. N. 


239 ; Hemangini v. Kedamath (1889) 
16 Cal. 758, 16 I. A. 115 ; Shashi Bhvsan 
V. JIari Narain (1921) 48 Cal. 1059, 1065, 
1060, 66 I.C. 705, ('21) A.C. 202; Mira 
ImI Marxdal v. .Sanfcar Lai Mandal (1938) 
2 Cal. 250. 

(/) (1012) 34 All 234, 39 I.A. 121, 14 I.C 1000, 
Reversing 32 All. 253, 5 I.C. 208 ; 

Lai Y. Phula (1928) 50 All. 22, 105 I.C. 
322, ('27) A.A 679. 

(g) Bhagiuantrao v. Punjaram (1938) Nag 255, 
174 I.C. 201, (’38) A. N. 1 ; Sital Prasad 
V. Sri Raw (1944) Luck. 450. 

(.^) Krishna Lai v. Nandeshiiar (1919) 4 Pat. 
LJ. 38. 45. 44 I.C. 146. (’18) A.P. 91 
(Share allotted to graiulmother). 


Ss. 

127, 128 



128 


HINDU LAW- 


Ss. 

128, 129 


{4) As regards the Madras school, the practice of allot- 
ting a share to females on partition has become obsolete. 
No question can, therefore, arise in that school as to whether 
such share is stridhana or not [sec. 118]. 

The question whether the share allotted to a mother on partition is stridhana or 
not according to the Benaies school was left open by their Lordships of the Privy Council 
in Bhugtcandeen v. Myna Saee (i), the very case in which they held that property inherit- 
ed by a woman was not stridhana according to the Mitakshara. In Debt Mangal Prasad’s 
case, the Allahabad High Court, after a review of all the authorities on the subject, held 
that it was stridhana, but the Privy Council held that it stood on the same footing as 
property inherited by a woman and that it was not stridhana [sub-sec. (2)]. 

Where a deed of part.ition confers in terms an absolute estate upon the mother 
in the share allotted to her, she takes the share as her stridhana (j). In Debt Mangal 
Prasad's case the Privy Council said : “ Of course|the members of a joint family 

effecting a partition may agree that a portion of the PB^erty shall be transferred to the 
widow by way of absolute gift, as part of her stridhana, so as to constitute a provision 
for her stridhana heirs ; but, in the absence of any such intentioUj their Lordships do not 
feel justified in putting property acquired by a widow, on a partition of the joint estate, 
upon a footing different from that on which property coming to her by way of inheritance 
has been placed.” In a later case, where a share was given by the step-sons to their step- 
mother and the agreement provided that she was to be responsible for a definite share 
of the debts, their Lordships of the Privy Council held that the step-mother took an 
absolute interest in the share alloted to her (k). 


129. Property given in lieu of maintenance.— Money paid 
to a Hindu female periodically for her maintenance {vritti), 
and tbe arrears of such maintenance, or a lump sum of money 
given to her in lieu of maintenance, constitute stridhana 
according to all the schools (f). So too does immoveable pro- 
perty transferred to a woman by way of absolute gift in lieu 
of maintenance (m). It does not make any difference whether 
the maintenance is awarded during coverture (n) or during 
widowhood. Nor does it make any difference that it is awarded 
under an agreement between the parties or by a decree of the 
Court (o). The transfer of property given absolutely in lieu 
of maintenance is not void under sec. 6 of the Transfer of 
Property Act (p). 


Arrears of maintenance constitute stridhana. though the maintonance is payable 
by the husband under a decree obtained by the wife against him. If tbe wife dies in the 


(t) (1876) 11 11,1. A. 487, 614, 

(j) Bolye Chund v. KhetUrpaul (1873) 11 Beng. 
la. R 459. 

(J.) Salwf) Hai b. Shafiq Ahmad (1927) 31 C "W 
N. 972. 101 I. C. 426, (’27) A. PC. 101 
(/) Doorga v, Teju (1866) W. U. Mifl, 63 (gift 
of money by eon to mother for nuiintc- 
nance) : Court of War(U v. Moltetsur (1871) 
16 W. R. 76 (Dayabhagu case); NeUai' 
kumaru v. Marakathammal (1876) 1 ilad. 
166 ; Suhratnanian v, Amnachelamll^h) 
28 Mad. 1 ; Af antial v. Boi Betwz (1893) 


17 Bora. 758 ; Cunpalliao y. Ham Clmntier 
(1889) 11 All. 296. See particilarly 

28 Mad. 1, supra, at pp 7 and 8 . 
Janardhan \ SorwZai (1942) Nag 16 , 11*8 
I.C. 293, (’42) A.N. 30. 

im) DfbiMangal Prasad v.ifahadeo Prasad (1912) 
34 All. 234, 39 I.A. 121, 131. 14 1 C. 1000. 

(n) (1893) 17 Bom. 758, supra. 

(o) (1693) 17 Bom. 758, and (1905) 28 Mad. 

1, supra. 

ip) Dhul ^fdih V. Ram Charitra (1932) 54 All. 
366, 138 I.C. 556 ; (’32) A. A. 366. 



STRIDHANA. 


129 


lifetime of the husband, such stridhaiia passes to her stridhana heirs, so that if she has a 
daughter, she -will inherit it and she can claim it from the woman’s husband, even if he 
happens to be her own father. 

The text generally cited in this connection is that of the Smriti writer Devala, which 
I u ns as follows ; — 


Ss. 

129, 130 


“ Her subsistence, her ornamentg, her perquisite {sulka), and her gains are the separate 
property of a woman.” 

It may be asked why, if the share allotted to a woman on partition is not her stridhana, 
maintenance allotted to her is her stridhana. The answer is that the share allotted 
to a mother on fariiiion is always equal to that of the son’s share which may exceed what 
is required for her actual maintenance, while maintenance is not fixed on that basis. 

As to the law of the Mithila school, see sec. 119. 


130. Property acquired by inheritance, — (i) A woman 
may inherit the ordinary property of a male such as her husband, 
father, son and the rest. She may also inherit the stridhana 
of a female such as her mother, daughter, and the rest. 

{2) According to the Dayabhaga school, as well as the 
Benares, Mithila, and Madras schools, property inherited by a 
woman whether from a male or from a female, does not become 
her stridhana. She takes only a limited interest in the property 
[secs. 177-180], and on her death the property passes not to her 
heirs,. but to the next heir of the person from whom she inherited 
it [secs. 168-1 69]. Thus if the property is inherited from a male, 
it will pass to his sapindas, sakulyas and samanodakas, if the 
parties are governed by the Dayabhaga law [secs. 88-90], and 
to his sapindas, samanodakas and bandhus if J^he parties are 
governed by the Mitakshara law [secs. 43 to 50]. And if the 
property is inherited from a female, it will pass to the next 
stridhana heirs of such female [secs. 145-157]. 


Illustration, 

A Hindu dies leaving a widow and a brother. The widow will inherit his property 
as his heir. She takes only a limited interest in the property, that is, she can enjoy only the 
income of the property. She cannot alienate the property except in the cases mentioned 
in secs, 178-179. On her death, the property will pass not to her stridhana heirs, but to 
the next heir of her husband, that is, his brother. The same rule applies where a female 
inhents property from her father, son, son’s son, or son’s son’s son, that is, where she 
inherits it as daughter, mother, grandmother, or great-grandmother respectively. As 
bo property inherited /rowi a female see the illustration to sec. 169 below. 

(3) According to the Bombay school, property inherited 
by a woman from a female becomes her stridhana in all cases. 
She can dispose of it by act inter vivos [that is, by sale, 

5 



130 


HINDU LAW. 


S.13Q 


mortgage, gift, etc.] or by will, and on her death intestate 
the property passes to her stridhana heirs (sec. 171). 

x\s regards property inherited by a female frorn a male, 
the Bombay school divides female heirs into two classes, 
namely — 

(a) those who are introduced into the gotra or family of 
the deceased owner by marriage, such as the 
deceased’s wife, mother, father’s mother, etc.; and 

(b) other female heirs, being females born in the family, 
such as the daughter, sister, brother’s daughter, 
sister's daughter, etc. 

Property inherited by a female who belongs to clas.s (a) 
does not become her stridhana. She takes only a limited 
interest in such property, and on her death- it passes to the 
next heir of the male from whom she inherited it. 


Property inherited by' a female who belongs to class (b) 
becomes her stridhana in all cases. She can dispose of it 
by an act inter vivos or by will, and on her death it passes to 
her own stridhana heirs (sec. 170). 


(4) The result is, as regards property acquired by inheri- 
tance, that according to the Dayabhaga, Benares, Mithila, and 
Madras schools, it does not become stridhana in any case. 
'rtilU according to the Bombay school, it becomes stridhana in 
all cases except where it is inherited by the deceased’s widow, 
mother, or other female relation who entered his gotra (family) 
by marriage. 


Tlie ilJufitraMons to secs. 170 and 171 may be read. 

Female who enter the golru of a Hindu, by marrutge.— These are his wife, his 
father’s wife {i.e., his mother), his father’s father’s wife [i.e., his grandmother), hi.s 
father s father’s father’s wife {i.e., his great-grandmother), and the wives of other 
amndanta ; also the wives of coUaieraU, a class of heirs recognized in the Bombay school 
only, namely his brother's wife, his nephew’s wife, his uncle’s wife, his cousin's wife, 
etc. [sec. 68]. In short the females who enter the gotra of a Hindu by marrutge are his own 
wife, and the wives of all his sapindas and samanodakas. All the, so take a limited 
interest in the property inherited by them from a male sapinda or samanodaka, and on 
t eir ^th the property passes not to tlieir stridhana heirs, for it is not their stridhana 
hut to the next heir of the male from whom they inherit it. 

Females born m (Ae /ami'fg.— Turning now to the other female heirs in the Borobav 
Presidency, that is, females other than those who enter the golra of a person by marriage, 

in ins gotra or the daughters of such 
females. Thus a dau^ghter, sister (father’s daughter), niece (brother’s daughter), are 
daughters horn in the golra"-, while a daughter's daughter, sister’s daughter, etc., arc 



STRIDHAWA. 


131 


the dauglitera of “daughters born in the gotra”. Property inherited by these female 
heirs from any male member of the gotra in which they are born, becomes their stridhana. 
Thus a daughter inheriting to a father, a sister inheriting to a brother, a niece inheriting 
to an uncle, all take the property absolutely as their stridhana. They can dispose of it 
in any way they like and on their death it passes to their own stridhana heirs. 


Ss. 

130,131 


What is stated above may be explained by a diagram thus ; — 


Property inherited by a woman. 


A . — That inherited B . — That inherited 

from a female. from a male, 

I 


Bl — That inherited by 52 — That inherited by 

women who enter other female heirs, 

the gotra of the 
owner by marriage. 

According to the Bombay school, A and 52 are stridhana ; 51 is not stridhana. 
According to the other schools no inherited property can be stridhana at all. 

131. Propert;^ acquired by mechanical arts. — A Hindu 
female may acquire property by mechanical arts or otherwise 
by her own exertions during maidenhood, or she may do so 
during coverture, or during widowhood. 

(1) Property acquired by a Hindu female by mechanical 
arts or otherwise by her own exertions during maidenhood 
or widowhood is stridhana according to all the schools. The 
reason is, that the text of Katyayana which excludes such 
property from the category of stridhana applies only to 
property acquired during coverture [sec. 127, sub-sec. (J), 
notes]. 


(2) Property acquired by a Hindu female by mechanical 
arts or otherwise by her own exertions during coverture is 
stridhana according to the Bombay, Benares, and Madras {q) 
schools [ss. 116-118], but not according to the Mithila and 
Dayabhaga schools [ss. 119-120]. But if the woman survives 
her husband, then, it seems that according to the Dayabhaga 
law such property becomes her stridhana, for the Dayabhaga 
distinctly recognizes the ivife’s ownership in the property 
even during coverture. It is difficult to say whether it 
becomes stridhana according to the Mithila law. 

The notes to sec. 127, sub-secs. (1) and (3) may be read. Mechanical arts include 
spinning, painting, etc. 


(j) Seo Salemma v. Lutchmana (1898) 21 Mad. 
100, at p. 105 ; Muthu liamakTVihna v. 
Manmuthu (1915) 38 Mad. 1036, 24 


I.C. 363,(’14) A.M. 12S [ property acquired 
by ha'^band aud wife by jomt trade ], 



132 


HINDU LAW. 


Ss. 

132434 


132. Property obtained by compromise. — As to properties 
obtained by a woman under a compromise or a family 
arrangement, there is no pre.sumption that she takes only 
a life estate. What estate she takes depends on the terms of 
the deed and other circumstances (r). Accordingly where 
one of two brothers living jointly died and his share was claimed 
by right of survivorship by the other brother, while the widow 
claimed it as his heir and the matter was referred to arbitration 
and under the award certain property was allotted to her, 
it was held by the Privy Council that she took an absolute 
estate in the property allotted to her on the ground that there 
were no words in the award to narrow her interst {s) . Property 
obtained by a woman under a compromise in consideration 
of her giving up her rights in relation to her stridhana is 
stridhana according to all the schools («)• Property obtained 
by a widow under a compromise with h^r adopted son, is 
her absolute property (w). Where a daughter, not an heir 
by custom, obtains property from a reversioner by a compro- 
mise, it is her stridhana (y). 

133. Property obtained by adverse possession. — Property 
acquired by a Hindu female, whether during coverture {u') 
or widowhood (x), by adverse possession, becomes her 
stridhana according to all the schools. See sec. 211 below 

A Hindu female executes a deed of gift of her stridhana m favour of her daughter, 
but the deed is not registered. The daughter enters into possession of the property In 
each a case li the mother dies after the daughter’s possession has become advor-to. the 
daughter is entitled to the property as her stndhana^ the same having been acquired by 
adverse possession, and on her death it %\iU pass to her heirs. But if the mother dies 
before twelve years’ adverse possession has been completed leaMiig the daughter as her 
heir, and the daughter continues in possession, her possession after her mother’s death is 
the possession of an heir, and she takes a hmxted interest m it, and at her death the pro- 
perty Will pass not to her heirs, but to the next stridhana heirs of the mother (y). 
See sec 169. 


134. Property purchased with stridhana. — Property pur- 
chased by a woman with her stridhana, and the savings 
of the income of stridhana, constitute stridhana according 
to all the schools (z). 


(r) Vanaii Adija ^^hatikar 'ieicun \ Ml 
Chanaraxati (l‘)l'>) 10 Lmk. OO. 150 
I C 519, ('34) A O 265 

(«) i^'athvlal \ Baburavi (1036) 03 I A 155, 
38 Bom L K 462, 151 I C 33, { 3(») 
A PC 103 

(0 Soiolamirxfie Douses v AdmmifttraloT (wcnfral 
oj Bmijnl (1R93) 20 Cal 433, 418 4 * 0 , 
443, 20 I A. 12 *566 also Samhakxia v 

Venlatasuara (1908) 31 3Ia(l 179 
(«) Parshottam\ /(^w^Aal/a^(1932) 50 Bom 104, 
137 I C 501, ( 32) A B 213 
(p) Rai Baje^huar \ Jlarhuhaji (1933) 8 Luck 
538, 150 I C 346, C'38) A 0 170 


(«j) ^fofnin L/iuiiuii \ Aunt (1894) i 

W \ 161. 102 

(x) Sham Koer \ Dnth Kotr (J002) 29 f .il 664, 

29 I A 132 Kanlni Ham \ .lmu(19l0> 
32 All 189, 5 I ( 207 Mohxin thunder y 
Jiu<ihi Kavt (l8U7) 2 ( W N 161 

(y) Dhurjati v Bam Bharat (1930) 52 All 222, 

121 I C 701, ( 30) A A 109 
{Zl jAdhmun V Kalii (hum n873) 19 W U 
292 [PCI, Ymkata \ Venkata (lSt( ) 
2 Mad 333 [P( ], ftlTiiming Venkata 
V PgrAaeu (1877) 1 M.vd 281 ^eUaxku 
viaru \ Marakalhamotal (1876) 1 Mf 
106 , Suhramaman \ Ariinathelam (IS OS) 
28 Mad 1 



STRIBHANA. 


133 


It does not make any difference that the property purchased is immoveable property 
[a. 177]. Nor does it make any difference that it was purchased by her in the exercise 
of a right of pre-emption, though she could not have claimed the right had she not been 
in possession of her husband’s property which adjoined the property purchased by 
her. If it was purchased with her stridhana, it is her property (a). The more fact that she 
could not have acquired the property had she not been in possession of her husband's 
estate does not make it part of her husband’s estate (6). Where the main estate was in 
the hands of a receiver appointed under a decree and the widow was only receiving a 
pension, purchases of properties made by the widow out of her savings would be her stri- 
dhana and would pass to her stridhana heirs (c). 

If a woman obtains property in exchange for property which is her stridhana or 
advances money which forms her stridhana on a mortgage, or takes an assignment of 
leasehold property with her stridhana, ail such property constitutes her stridhana. 

135. Property acquired from other sources. — We have 
enumerated in sections 126 to 134 the principal sources 
from which property may be acquired by a Hindu female- 
Whether property acquired by her from any other source 
constitutes her stridhana or not, is to be determined with 
reference to the provisions of sec. 123 above. 

We have already stated in sec. 124 that stridhana has two peculiarities attaching 
to it, namely, (1) that the woman has absolute power of disposal over it except in 
certain cases during coverture, and (2) that it follows a special order of succession. We 
shall deal with the first of these in sec. 141 to 144, and with the second in secs. 146 tQ.,164. 
In fact, the question whether a particular kind of property is stridhana or not becomes 
important only when the question arises as to her power lo dispose of it or as to the line 
of succession thereto. 

136. Stridhana by custom. — The widow of a separated 
Hindu who dies without leaving male issue may, by custom, 
inherit his estate as stridhana {d). 

In the case referred to above the parties were Jains governed by the Mitakshara law. 

137. Maiden’s property. — It is clear from what has 
been stated in the foregoing sections that except property 
inherited by her all property of a maiden, however acquired, 
whether by way of gift or bequest from relations or from 
strangers, or by mechanical arts or otherwise by her own 
exertions, constitutes her stridhana. But in the Bombay 
school, even property inherited by her is her stridhana, for a 
maiden does not come within the category of females who 
enter the gotra of the owner by marriage [sec. 130, sub-sec. (4)]. 

See notes to sec. 127, sub-sec. (7). 

The word rilchia (property) is perhaps more appropriate to he applied to the property 
of a maiden than the word stridhana. 


(а) Sri Ram v. JagdamJba (1921) 43 All. 374, 

61 1. C. 3, ('21) A.A. 11 [F.B.]. 

(б) Mahna Singh v. Thamm Singh (1931) 11 

Lati. 393, 128 I.C 203, ('30) A.L. 1010. 


(c) Ai^warf/anand'O v. SirajT (1935) 40 Mad. 116 
(•26) A.M.81. 

(<f) naknmChami v S\laJ Prasad (1928) 50 All. 
232, lOr r.C, 244, ('28) A A. 52. 


Ss. 

134>137 



134 


HINDU LAW. 


Ss. 

138<'i41 


138. Property acquired during widowhood. — It follows 
from what has been stated in the preceding sections, 
that all property of a widow acquired by her during her 
widowhood (whether by way of gift or bequest from relations 
or from strangers, or by mechanical arts, or by way of 
maintenance, or by adverse possession, or under a com- 
promise), constitutes her stridhana except — 

(i) according to the Bombay school, property inherited 
by her as a widow, mother, grandmother, etc.; 
and, according to other schools, all property 
inherited by her in any capacity [sec. 130] ; and 

(ii) property obtained by her on partition [sec. 128]. 

See sec. 127 and notes thereto, and also secs. 129, 131, 132 and 133. 

139. Unchastity. — Unchastity does not disqualify a 
woman from inheriting stridhana propert^^ (e). 

140. Presumption as to property foundinwidow'spossession-— 
Where a widow is found in possession of property of the 
acquisition of which no account is given, then the mere fact 
that her husband died possessed of considerable property 
raises no presumption that the property found in her posses- 
sion was originally that of her husband (/). Nor is there any 
presumption that the money with which a wddow in possession 
of her husband’s estate makes a purchase of property came 
out of the savings from her husband’s e, state (g). Generally 
where a woman has been in possession of property, there is no 
presumption that she had only a hmited estate in it {h). 

IV. RIGHTS OF A WOMAN OVER HER STRIDHANA. 

141. Texts bearing on the subject. — The whole law relating 
to the rights of women over their stridhana has been 
evolved from the following four texts, of which the first three 
are the texts of Katyayana, and the last is the text of 
Narada ; — 

(1) “ What a woman, either after marriage or before it, 

either in the mansion of her husband or of her father, receives 
from her lord or her parents is called savdayiha,, that is, a gift 


(e) J/.st Gangu v, Gfuis^ta (1875) 1 All. 40 ; 
Xogendra v. lienou Kruthna (1003) 30 Uni 
521 , Angammai v. Venkata (1003) 26 Mnd. 
509. 

(/) Diwan llamBijai v. Indarpal (1809) 26 Cal. 
871, 26 I.A 226 ; Ganpal v. Serretary of 
State (1921) 45 Bum. 1106, 02 I.C, 109, 


(’21) A. B 138 ; Narayana v. Kru^hna 
(1885) 8 Mad. 214 ; Choivdranx v. Tanny 
Kanih (1882) 8 Cal. 545. 

(l7) Baikvnlh Nath v, Jai Kishun (1029) 51 All 
341, 113 I.C. 2C0, (’20) A. A. 449. 

(A) Belo V. Parhatx (1940) All. 371, 190 I.C. 034, 
(’40) A. A. 385. 



STRIDHANA. 


135 


from affectionate kindr'^u^; and such a gift having by them 
been presented through kindness, that the woman possessing 
it may live well, is declared by law to be her absolute pro- 
perty. The absolute exclusive dominion of women over such 
a gift is perpetually celebrated ; and they have fower to sell 
or give it away as they please, even though it consists of lands 
and houses. Neither the husband, nor the son, nor the father, 
nor the brother, has power to use or to alienate the legal 
property of a woman.” — Katyayana [Colebrooke’s Digest, 
Book V, p. 475]. 

(2) “ The wealth which is earned by mechanical arts or 
which is received through affection from a stranger is subject 
to her husband’s dominion.” — Katyayana [cited in the 
Dayabhaga, chap. 4, sec. 1, para. 19]. 

(3) “ What a woman has received as a gift from her hus- 
band she may dispose of at pleasure after his death, if it be 
moveable ; but as long as he lives, let her preserve it with 
frugality or she may commit it to his family.” — Katyayana 
[Colebrooke’s Digest, Book V, p. 477]. 

(4) “ Property given to her by her husband through pure 
affection she may enjoy at her pleasure after his death, or may 
give it away except land or homes.” — Narada [Colebrooke’s 
Digest, Book V, p. 476]. 

It follows from the above texts — • 

(i) that during maidenhood, a Hindu female can dispose 
of her stridhana of every description at her pleasure ; 

(ii) that during coverture, she can dispose of only that 
kind of stridhana which is called saudayihx, that 
is, gifts from relations except those made by the 
husband ; 

(iii) that during tvidoivhood, she can dispose of her 
stridhana of every description at her pleasure 
including moveable property given by the husband, 
but not immoveable property given by him. 

When we turn to judicial decisions on the subject, we 
find that the distinction between saudayika, that is gifts from 
relations, and non-saudayilca is still maintained, but the 
distinction between saudayika given b)'’ the husband and that 


S. 141 



136 


HINDU LAW. 


Ss. 

141443 


given by otter relations no lon^'‘.r stands. Instead we 
have now a simple rule for all kinds of saudayika based 
upon the distinction between an absolute grant and a limited 
grant. In order to determine whether saudayika, that is 
property given to a female by her relations, can be disposed 
of by her at her pleasure, the rule now adopted by our Courts 
is to ascertain whether the gift passes an absolute estate or 
a limited estate. If the gift passes an absolute estate, she can 
dispose of the property at her pleasure whether the gift be from 
her husband or other relations. But if the gift passes a limited 
estate only in the property, e.g., a life-estate, she cannot 
alienate the property though she may alienate her life-estate. 
Thus if A gives property to his daughter for life, and the 
remainder to his nephew on the death of his daughter, the 
daughter takes only a life-estate. She cannot; therefore alienate 
the corpus of the property, though she may alienate her life 
interest. We now proceed to state the rules on the subject, 
so far as they are settled by judicial decisions. 

142. Rights over stridhana during maidenhood. — There is 
no limitation to the power of a Hindu female to dispose 
of her stridhana during maidenhood, whatever be the 
character of the stridhana, qualification attaching except the 
disqualification to her by reason of minority. 

So long as a Hindu maiden is a minor, sho cannot alienate her property except 
through her guardian, nor can she dispose of it by will. 

Note th at the texts cited in sec. 141 refer only to the case of a married woman. 

143. Rights over stridhana during coverture— Saudayika 
and non-saudayika. — The power of a woman to dispose of 
her stridhana during coverture depends on the character 
of the stridhana. For this purpose stridhana is divided 
into two classes, namely, (1) saudayika, and (2) other kinds 
of stridhana. Saudayika means, literally, a gift made through 
affection. It is a term applied to gifts made to a woman at, 
before, or after marriage, by her parents and their relations, 
or by her husband and his relations ; in other words it 
means gifts from relations as distinguished from gifts from 
strangers (i). It also includes bequests from relations (ji). 

(i) Mmhxikarut^ria v. .SpHuHaninwi 30 | (j) Damxdar v. Purm^nandas (1883) 7 Bom. 

Mild. 208, 20 I.f 78.*>, A.M. 475, j 155 [bequest from husband] ; Jut/oonatA v. 

Hhau Uaghinmth (1<H)6) 30 llom. 220 I Bimsunt Coowar (1873) 11 Bcng L K. 286, 

205 [Itequest from father]. 



STRIDHANA. 


137 


(1) Saudayika alienable at pleasure . — A woman has 
absolute power of disposal over her saudayika stridhana even 
during coverture. She may dispose of it by sale, gift, 
will, or in any other way she pleases, without the consent 
of her husband [k). Her husband has no control over 
it. He cannot bind her by any dealings with it (Z). But he 
can “ take ” it in case of distress, as in a famine, or during 
illness or imprisonment. This right to take the wife’s 
property is personal to him, and if he does not choose to take 
it, it cannot be taken by his creditors in execution of a decree 
against him (to). The word “ take ” in the text of Yajnavalkya 
does not mean “ physical taking,” but means “ taking and 
using.” Hence if the husband takes his wife’s property in 
circumstances such as the above, but does not actually use it 
or dispose of it in' his lifetime, his creditors are not entitled 
to it after his death {n). 


(2) Stridhana other than saudayika. — Saudayika stri- 
dhana, we have seen, can be disposed of by a woman at her 
pleasure and without the consent of her husband. As regards 
stridhana other than saudayika, e.g., gifts from strangers, 
property acquired by mechanical arts, etc., the rule is that 
she has no power to dispose of it during coverture without the 
consent of her husband (o). It is subject to her husband’s 
dominion, and he is entitled to use it at his pleasure even if 
there be no distress. In a case where, though the wife was not 
living with the husband for 20 or 25 years, she was living in a 
separate room in a temple and the husband lived in the same 
temple it was held that she was under coverture and the rule 
was applied, (p). But it is subject only to her husband’s 
control and not to the control of any other person. After 
the husband’s death, her power to dispose of it becomes abso- 
lute, and she may dispose of it by act inter vivos or by will. 


(k) Venkata v. Venkata (1880) 2 Mad. 323 (P.C'.] 
[affirming Venkatay. VenA'afo (1877)1 Mad. 
281) [gifts of moveables from husband], 
3/unia V. Puran (1883) 5 All. 310 [immove- 
able property acquired from brother]; Bhau 
V. Raghunath (1006) 30 Bom 229 ; Sham 
Shivendar v. Janki ifoer (1009) 36 Cal, 311, 
36 I. A 1, 1 I.C. 126 ; King-Emperor v. 
Satnarain (1931) 53 All. 437, 130 I C. 693, 
(“31) A. A. 265 ; Venkareddi v. Uanminl 
Goioda (1933) 57 Bom. 85, 141 I.C. 082. 
(’32) A.B. 559. 


il) Mohimi Chunder v. Durga Monee (1875) 
23 W.R. 184 [P.C.). 

(m) Tukaram v. Ounaji (1871) 8 Bom. H.C. 
A.C. 129. 

(«) yaminalwar v. Thayarammal (1027) 50 Mad. 

941. 105 I.C. 793, (’27) A.M. 1031. 

(o) Bhau V. Raghunaih (1906) 30 Bom. 229. 
See Salcmma v. Lutehmana (1898) 21 
Mod. 100, 105. 

(j») ^ariib/tai Balakdas v, Narayandas Bairagi 
(1943) Bom. 314, 209 I.C. 620, (’43) A.B. 
224. 


S.143 



188 


HINBU LAW. 


Ss. 

143445 


AVhen it is said that stridhana otlier than saudayika (gifts 
from relations) cannot be disposed of by a woman without her 
husband’s consent, it is meant that in her lifetime she cannot 
sell it, or make a gift of it, or bequeath it by her will, or other- 
wise deal with it without her husband’s consent. On her death 
whether she dies before (g) or after her husband, it passes to 
her stridhana heirs. 

144. Rights over stridhana during widowhood.— A Hindu 
female has during widowhood absolute power of disposal 
over every kind of stridhana, whether acquired before or 
after her husband’s death (r). 

V.-SUCCESSION TO STRIDHANA. 

145. Succession to maiden’s property. — (1) Succession to a 
woman’s stridhana varies according as she was married or 
unmarried, and according as she was married in an approved 
or in an unapproved form. It also varies according to the source 
from which the stridhana came. The rules of descent, again, 
are different in different schools. But the schools do not 
differ as to succession to the property of a maiden. A maiden’s 
property, according to all the schools, passes in the following 
order : — 


(1) uterine brother ; 

(2) mother ; 

(3) father ; 

(4) father’s heirs in order of propinquity (s) ; e.g., the 
full sisters of maiden’s father were preferred to the 
half sisters ((). 

(5) kinsmen of the deceased herself, that is, her mother’s 
heirs in order of propinquity (s). 

(2) Death of girl after betrothal and 'presents received from 
bridegroom . — Where a girl dies after betrothal, all presents 
received from the bridegroom are to be returned to him, after 
deducting all expenses incurred by the bride or her parent or 
guardian. 


(g) Salema v. iMlcfimana (189S) 21 Mad. 100; 
Banerjee's “ Hindu Law of Marriage and 
Stridhana,'* 5th ed., pp. 382-383 [as to 
gifts from strangers and property acquired 
by mechanical arts], 

(r) jBrij Indar V. Jankx Koer (1877) 1 Cal. L. 
R. 318, 325, 5 I. A. 1, 15 ; Venkata v. 


Venkata (1877) 1 Mad. 281, 286. 

(«) Janglubai v. Jetha (1008) 32 Bom. 409, 413 ; 
Shama Itao v. Raghunandan (1039) Bom. 
228, (’37) A.B. 194. 

(/) Shakunialabai v. The Court of Wards fl042) 
Nag. 620, 190 I.C. 379, (’42) A. N. 57, 14 
I.U. 273. 



SUCCESSION TO STRIDHANA. 


139 


The order of succession down to no. 3 (father) is based upon a text of Baudhyayana Sg, 
which is followed by all the schools. The lino of descent is not carried any further in J45 146 
that text. The Viraraitrodaya of the Benares school, after citing the said text, adds : 

“ On failure of the mother and the father, it goes to their nearest rel(Uio7i8.^* This has 
been interpreted by the High Court of Bombay to mean that it goes, first, to the father’s 
sapindas, and then to the kinsmen of the deceased herself, that is, to the mother’s sapin- 
das. Thus where a maiden died leaving her father* s mother’s sister and her mother's 
mother, it was held by the High Court of Bombay that the former being a sapmda of the 
father, was entitled to succeed in preference to the latter who was a sapinda of the 
mother (w). It has similarly been held by the High Court of Madras that a step-mother 
{father's wife) is entitled to succeed in preference to a mother's sister (v). 

Father's heirs in order of propinquity, — In the Bombay Presidency a father’s sister 
is entitled to succeed to a maiden’s stridhana in preference to the father’s male gotraja 
sapindas five or six degrees removed {w); see sec. 72 , no. 12 and sec. 77 , no. 12 . But in 
Madras a sister is a bandhu [sec. 55, no. 1 ] ; hence in that Presidency, the father’s 
male gotraja sapindas, e.^., his paternal uncle’s son, would be preferred to Ms sister (x). 

Under the Mitakshara law as applied by the High Court of Calcutta, a sister (father’s 
daughter) and a sister’s soijp (father’s daughter’s son) are entitled to succeed to a maiden’s 
stridhana in preference to a father’s brother’s son (y). 

We next proceed to state the rules of succession to the stridhana of a married tooman, 
first according to the Mitakshara, next according to the four Mitakshara sub-schools, 
and lastly, according to the Dayabhaga. But before domg so, we shall state the order 
of succession to Sulkaj as it is the same in all the four Mitakshara sub-schools. 

146. Succession to sulka. — (i) The term sulka is 

differently interpreted in different schools [see secs. 147, 150, 

152, 153 & 154]. According to the Benares, Bombay, Madras 
and Mithila schools, sulka passes in the following order : — 

1. uterine brother ; 

2. mother ; 

in default of these, it is conceived that it passes to — 

3. father ; 

4. father’s heirs, that is, his sapindas, samanodakas 
and bandhus. 

(2) According to the Dayabhaga, sulka passes in the 
following order : — 

1. whole brother ; 

2. mother ; 

3. father ; 

4. husband. 

(u) (1908) 32 Bom. 400, supra. 

<v) Kavuila v. Bfuigiratki (1915) 38 Mad. 45, 

16 I.C. 039, (’16) A.M. 925. 

(m») Tukaram v. Narayan (1012) 36 Bora. 339, 

14 I.C. 438 [F.B.]. 


(*) Bundaramy. Ramasamia (1920) 43 Mad. 32, 
52 IX. 821, (’20) A.M. 728. 

(y) Dtcarka Nath v. Sarat Chandra (1912) 89 Cal. 
310, 11 IX. 872. 



140 


HINDU LAW. 


Ss. 

146, 147 


The leading text on succession to Sulka is that of Gautama, which runs as follows 
“ The sister's fee belongs to the uterine brothers ; after [the death of] the mother." 
The text may also be traiislated thus : “ The sister’s fee belongs to the uterine 

brothers; after [them] it goes to the mother.” And this is the translation accepted by 
all the schools. 


A.— SUCCESSION TO STRIDHANA ACCORDING TO THE MITAKSHARA. 


147. Succession to stridhana according to the Mitakshara.— 
Por the purposes of succession, the Mitaksliara divides 
stridhana [s. 115] into two classes, namely — • 

(1) sulka, which is defined as a gratuity for which a 
girl is given in marriage ; and 

(2) other kinds of stridhana. 

(7) Sulka. — Sulka devolves in the order mentioned 
a s. 146, sub-s. {!). ® 

(2) Other kinds of stridhana . — Stridhana other than sulka 
lasses in the following order : — 

1 . unmarried daughter ; 

She takes before married daughter. The rule applies to Jains in the absence of 
a special custom (a). 

2. married daughter who is unprovided for (a) ; 

3. married daughter who is provided for (b) ; 

4. daughter’s daughter (c) ; 

5. daughter’s son (c) ; 

6. son (d) ; 

7. son’s son (e). 

If there be none of these, in other words, if the woman 
lies without leaving any issue, her stridhana, if she was married 
n an approved form (/), goes to her husband {g), and, after 
lim, to the husband’s heirs in order of their succession to him {h) 


U) 

(o) 


(<0 

(f) 


Jaiwanti v. Anatidi Deti (l‘Jd8) All. lOfi, 
173 I C. (*38) A A. 62. 

Sriviati Uma t)eii v. Gokoolanund (1678) 
3 Cal, 587, 5 I A, 40. 

See Totaira Hasawa (1899) 23 Bom. 229. 

Malm Mai v. Meherx y^MnM'ar(1940) AU. 416, 
189 I. C. 600. (’40) A. A 311 ; SuhTanwnxan 
V Amnachtlam (1905) 28 Mad. l 

[daughter's daughter takes befor; 
daughter's son] ; Amaiiit v. Algu U029i 
51 All. 478, 113 l.C. 765, ('29) A.A. 71, 

Kariippai v, Sankaranarayanan (1904) 27 
Mad. 300 (two or raore sons take as tenants 
in common]. 

Sham Bikari Lai v, Bam Kali (1923) 45 All 
715, 75 l.C. 495, (’24) A.A. 15 [daughter's 
daughter is a nearer heir than son’s son] , 


Bam v. Gopal Dc\ (1926) 48 All. 048, 
no J. C. 757, (’26) A.A. 557 [ditto] , 
JKukum Chand v Silal Prasad (1928) 50 
All. 232, 107 l.C. 244, (’28) A.A. 52 [ditto] 

(.f) O'urdiul Y. BhagU'an Deii (1927) 8 Lali. 366, 
101 1. C. 850. (’27) A. L. 441. 

(ff) lihivxaekarya v. Itamacharya (1009) 33 Bom 
4.52, 3 I. C. 750 (husband takes before his 
son by another wife). 

(A) Bat KfRtcrfiat'v. Hunsraj (1006) 30 Bom. 481, 
451, 33 l.A. 176 ; Javxiri v. (Jendan Singh 
(1927) 49 All. 779, 102 I. C. 167. (’27) 
A A. 767 ; Jodha v. Darbari Lai (1927) 2 
Luck. 612, 104 I. C. 193. (’27) A. O. 
330 , iSTimatt Krishna v. phaiya liajendra 
(1927) 2 Luck. 43, 80*00, 104 I. C. 155, 
(■27) A. O. 240. 



SUCCESSION TO STRIDHANA. 


141 


[see note (1) below] ; on failure of the husband’s heirs, it goes 
to her blood relations in preference to the Crown (i). But 
if she was married in an unapproved form {j) it goes to her 
mother, then to her father, and then to the father’s heirs (k) 
[see note (2)], and then to the husband’s heirs in preference 
to the Crown (1). 

Inherited property . — Property inherited by a female can 
be stridhana only in the Bombay school, and that too in the 
cases specified in section 130, sub-section (3), How does this 
hind of stridhana devolve in Bombay ? The answer is that if 
the case is governed by the Mitakshara, it devolves in the order 
given in sub-section (2) above, and if it is governed by the 
Mayukha, it devolves in the order given in section 151, clause 
TI. See sections* 170-171. 


1. Husband and his heirs . — Where the marriage is in an approved form, the stri- 
■dhana goes, in default of issue, to the husband and his heirs, that is to say, it descends 
in the same way as if it had belonged to the husband himself. The husband’s heirs are not 
■enumerated in the Mitakshara. They may, however, be ascertained from sec. 43 above. 
Following the lines of the order there given, the successive heirs to a woman’s stridhana, 
after the husband would be — 

1. his (husband’s) son by another wife (m), i.c., the deceased woman’s step-son ; 

Note . — The illegitimate son is not entitled to succeed to the stridhana of his 
father’s wife (a). 

2. his grandson by another wife (o); 

3. his great-grandson by another wife ; 

4. his other wives (p) ; 

5. his daughter by another wife, i.e., the deceased woman’s step-daughter (j) ; 

■G. the son of his daughter by another wife, that is, step-daughter’s son ; 

8. hisStherV } but in cases governed by the Mayukha ^her ; 

9. his brother (r) ; but in cases governed by the Mayukha, the full brother 

succeeds along with sons of full brothers who are dead, see sec. 77 and 
notes to No. 9 at p. 87 above. 

10. his brother’s son ; 

then his other sapindas, then his samanodakas, and then his bandhus (s). 


(i) Kanakaminil v. Anatithujnithi (lint) 37 
Mad 25 I. C 1101, A.3I. 18; 

Ganpat v. Secretary of State (11121) Jk>m. 
1100, 02 I. C. 10‘J, (’21) A. B. 138. 

(;) Janghibai v. Jetfia (1908) 32 Bom 400, 412, 
413. 

,{k) Ilaju V. Ammani (1900) 29 Mad. 3.58 (.si^tc•^ 
as father's daughter takes before sifter's 
son); Chanilal v, Sura)ram (1000) 33 
Bom. 433. 3 I. C. 765 ; Gound v. Savxtri 
(1019) 43 Bom. 173, 47 I. G. 883, (’IS) 
A.B. 03 (sister before paternal uncle). 

(1) Chandalal Asharam v. Bax Kashi (1939) 
Bom, 07. 

<m) (1909) 33 Bom. 452, 3 I. C, 750, supra 
(step-son takes after the husband). 

»(n) AyiswaryanarKlaji v. Sieaji (1920) 49 Mad. 


110, 92 r C, 928, (’20) A M. 84. 

(o) Gojftbat V, Shriiiiaut Shahajirao (1893) 17 

Bom. 114. 

(p) Krishnai v. Shripati (1906) 30 Bom. 333, 

alTirmina co-'Nidow’s ri[[ht to succeed; 
Kesxerbai v. llunsraj (1006) 30 Bom, 431, 
33 I. A. 170 (co-widow takes before hus- 
band’s brotljer and his nephew). 

{q) yanjiav. Sirabatp/athachi (1913) 36 Mad. 
116, 12 I. C. 128 [co-wife’s daughter before 
father’s brother’s sou]. 

(r) Paritiappa v. Shiddappa ( 1006) 30 Bom. C07 

(full brother takes before half-brother). 
See note (p) above. 

(s) Ganeski Lai v. Ajudhia Prasad (1906) 28 

All. 345 (husband’ssi-'ter's soiitakes before 
tile deceased woman’s bister’s son). 


S,147 



142 


HINDU LAW. 


Ss. 

147-149 


According to the Bombay school, tho widow of gotraja sapindaa would also be heirs 
[s. ti8J. 

2. Father and his fieirs.— When the marriage is in an unapproved form, the stridhana 
goes, in default of issue, not to the husband and his heirs, but to the mother, father, and 
iha father's heirs, as in the case of stridhana belonging to a maiden [s. 145]. Tho reason is 
that a woman married in an unapproved form is deemed to continue to belong to her 
father's family, because in such a marriage there is no giving away of the bride by the 
father to the bridegroom ((). The successive heirs after the father would be tho deceased 
woman’s brother, brother’s son, step-mother (a), sister, sister’s son, grand-mother, 
paternal uncle, and her father’s other sapindas, samanodakas and bandhus. 

3. Presumption as to form of marriage . — When the question arises as to whether a 
marriage was in an approved or in an unapproved form, the presumption is that it was 
in an approved form, unless the contrary is proved (r). 

4. Preference of female issue to male issue . — As regards succession to stridhana 
it should be noted that according to tho Mitakshara it goes to tho female issue of tho 
deceased woman in preference to the male issue ; see sub-sec. (2). 

5. Issue bom of a woman by adulterous intercourse . — It hSs been seen that where 
a woman dies leaving a husband and a son, the son is entitled to succeed to her stridhana 
in preference to the husband. Tho reason is that the issue of a woman is entitled to 
succeed to her stridhana before the husband. But issue means issue born in lawful 
wedlock. Therefore, if a woman dies leaving a husband and a son born of her by adul - 
terous intercourse the husband is entitled to succeed to her stridhana in preference to 
the son {w). See sec. 103. 

6. Married and unmarried daughter's daughter . — There is no distinction between 
married and unmarried daughter’s daughters as there is in the case of daughters (x). 


B.— SUCCESSION TO STRIDHANA— BENARES SCHOOL. 

148. Succession to stridhana — Benares school. — Succession 
to stridhana according to the Benares school is governed 
entirely by the law as expounded in the Mitakshara and set 
forth in sec. 147 above. 


C.— SUCCESSION TO STRIDHANA— BOMBAY SCHOOL. 


149. Succession to stridhana— Bombay school. — The 
Mayukha is of paramount authority in the island of Bom- 
bay, Gujarat and the Northern Konkan. In other parts of 
Bombay Presidency the authority of the Mitakshara is 
supreme [s. 12]. The result is that in cases governed by 
the Mitakshara succession to stridhana is governed by the 
rules laid down in the Mitakshara [s. 147], while in cases 
governed by the Mayukha, it is governed by rules laid down 
in the Mayukha and set forth in the next two sections. 


(0 V. Jft/ftt (1008) 32 Bom 408,413 

(w) Dubhin Parbali Kver v. Baijnalh Prasad 
(193.)) 14 Pat. 518. 

(u) Jagannath v. Punjit Singh (1898) 25 Cal. 
354 : Aulhikesai'ulu v. I{armnujar.i (1009) 
32 Mad. 512, 3 1. C. 541 ; Chunilal v. 
.S'j/ra;rfl7/i{1909) 63 Bom. 433, 3 I. ('. 765 ; 


Jagannath v, ^Tarayan (1910) .34 Bom. 55.3, 
7 1. C. 459 [even among Sudras belonging 
to a respectable family], 

(w) (1910) 34 Bom. 553, 7 I.C. 4f)9, sujjra. 

(z) Ham Kah v. Gopal Dei (1020) 48 All. 648, 
00 I. C. 757, ('20) A. A. 557. 



SUCCESSION TO STRIDHANA. 


143 


SUCCESSION TO STRIDHANA— ACCORDING TO THE MAYUKHA. 

150. Classification of stridliana— Mayukha Law. — For the 
purposes of succession the Mayukha divides stridhana into two 
classes, namely; — 

(i) technical or proper ; and 

(ii) non-technical or improper. 

(i) Technical stridhana is confined to gifts and bequests 
from relations made at any time, and gifts from strangers made 
before the nuptial fire or at the bridal procession [s. 113, sub- 
s. (6)]. It is sub-divided, for the purposes of succession, into 
four classes, namely : — 

(1) sulka, which is defined as property given as the 

equivalent of household utensils, of beasts of 
burden, of milch cattle, or ornaments ; 

(2) yautaha, that is gifts made to a woman at the time 

of her marriage, whilst seated with her husband 
on one seat, the word being derived from yuta, 
that is, ‘ joined together ’ ; 

(3) bhartridatta, that is property given or bequeathed 

to a woman by her husband ; and anwaAheyaha, 
that is property given or bequeathed to a 
woman subsequent to her marriage by her relations 
or by her husband’s relations [y) ; and 

(4) other kinds of technical stridhana [ss. 116 and 126]. 

(ii) Non-technical stridhana includes property inherited by 
a woman (z) in cases where she takes such property as stridhana 
[s. 130], the earnings of a woman, the maintenance (if any) 
fixed for her {a), property given or bequeathed to her by 
strangers {b) excepting that given before the nuptial fire and 
at the bridal procession and other kinds of property not included 
in technical stridhana. 


151. Succession to stridhana— Mayukha Law. — The Mayu- 
kha prescribes different lines of descent for the four classes of 


(y) See Go'pal Chandra v, Ram Chandra (1901) 
28 t'ftl. 311 ; Bam Gopal v. Nerain (1900) 
33 Cal. 315 ; Basanta v. Kamikshya (1906) 
33 Cal. 23, 32 I. A. 181. All these are 
Dayabhaga cases. 


(e) Viji^xrangamy. Lakshutnan (1871) 8 Bom. 
H. C. 0. 0. 244. 

(o) Manilal v. Bai Reim (1893) 17 Bom. 758. 
(b) Bai Nartnada v. Bhagwantrai(1888) 12 Bom 
505. 


Ss. 

150, 151 



144 


HINDU LAW. 


S. 151 teclmical stridhana [s. 1 50], and a further different line of 
descent for non-technical stridhana, in all five different lines. 

I. Succession to technical stridhana — 

(1) Sullca [s. 150 (i)] devolves in the order mentioned 

in s. 146, sub-s. (i). 

(2) Yautaka [s. 150 (2)] goes to unmarried daugh- 

ters (c). 

But what if there be no unmarried daughters ? Is it to go at once to 
the relations named in cl. Ill below ? It is suggested by an eminent writer 
that it should go in default of unmarried daughters, to married danglitcrs 
and their issue as under the Mitakshara [nco s. 147J, and, if there bo none 
of these, then to the relations specified in el. Ill of this section. See 
Banerjee's ‘‘Hindu Law of Marriage and Stridhana, ” 5th cd., p. 402. 

(3) Bhartridatta [gift or bequest frojji husband], and 

AmcadJieyaka [gift from relations subsequent to 
marriage], pass in the following order (d) : — 

(1) sons and unmarried daughters, taking 
together in equal shares (e) ; failing unmar- 
ried daughters, 

(2) sons and married daughters, taking 
together in equal shares ; failing sons and 
daughters, 

(3) daughters’ issue, that is, daughters’ 
daughters and daughters’ sons [s. 160] ; 
next, 

(4) sons’ sons [s. 160] ; 

(5) failing these, the persons mentioned in 
cl. Ill below. 

(4) Other kinds of technical stridhana (ss. 116 and 126) 

pass in the following order ; — 

(1) unmarried daughters ; 

(2) married daughters who are unprovided for ; 

(3) married daughters who are provided for ; 

(4) daughters’ issue, that is, daughters’ daughters 
and daughters’ sons [s. 160] ; 

(c) ^s/iolaiv. /iajiri/f(i(1885)9 ]3om. 115,126. 1 {«) flauuJila* v. Savilri Uav (1910) 34 Bom. 385, 

(d) 0 Bom. 115, 126, supra. I 0 I. C. 533. 



SUCCESSION TO STRIDHANA. 


145 


(5) sons ; 

(6) sons’ sons [s. 160] ; 

(7) failing these, the persons mentioned in 
cl. Ill below. 

II. Succession to non-technical stridhana — ■ 

Non-technical stridhana, that is, stridhana other than 
the four kinds of stridhana mentioned above [s. 150], 
passes in the following order (/) : — • 

(1) sons ; 

(2) sons’ sons [s. 160] ; 

(3) sons’ sons’ sons ; 

(4) .jdaughters ; 

(5) daughters’ sons [s. 160] ; 

(6) daughters’ daughters [s. 160] ; 

(7) failing these, the persons mentioned in 
cl. Ill below. 


Property inherited by a female can be stridhana only in the Bombay school, 
and that too only in the cases specified in s. 130, sub-s. 3. Such property, in cases 
governed by the Mayukha, devolves as non-technical stridhana (g). 

III. Succession to stridhana ^ where no issue . — Where a 
woman dies without leaving any issue, her stridhana of every 
description (except sulka) goes, if her marriage ■ took place in 
an approved form to her husband, and failing him, to her heirs 
in her husband’s family, who, however, are no other than her 
husband’s heirs [mentioned in note (1) to s. 147 above]. But 
if the marriage took place in an unapproved form, it goes 
to her mother, then to her father, and then to her father’s 
heirs (h) [sec. 147, note (2)]. 

Non-technical stridhana , — The Mitakshara prescribes only one line of succession 
for all kinds of stridhana except sulka. The Mayukha draws a distinction between 
technical and non-technical stridhana. As to bhartridaUa and onwadheyakat it is to be 
observed that according to the Mayukha it goes to the male and female issue 
together ; while non-technical stridhana goes^ first to the male issue, and then to the 
female issu^. The Mitakshara draws no such distinction. According to that authority 
non-technical stridhana, like technical, goes first to the female issue (t). In a Bombay 


(/) Mamlal v. Bai Itewu (1893) 17 Bom. 759 ; 
£ai Batnan v. Jagjtiandas (1917) 41 
Bom. 618, 41 I. C. 277, (’17) A. B. 229 
(sons take before grandson]. 

(p) (1893) 17 Bom. 758, 768, supra. 


(ft) See Kesserbai v. Hunsraj (1906) 30 Bom. 

431, 4j1, 33 I.A. 176. 197. 

(i) Jankibai v. Sundra (1890) 14 Bom. 612; 
Gulappa V. I'ayawa (1007) 31 Bom. 453. 


S.151 



146 


HINDU LAW. 


S. 151 


case ( j), under the Mitakahara, where a woman, married in an approved form, aucceeded 
to her mother’s Stridhan property and then died without leaving any descendants or any 
heir in her hushaud’s family hut leaving a brother and a sister it was held that (1) the 
property should go to her father’s heirs and (2) that the brother and sister took equally. 
The first part of the decision is correct, but it is submitted that the second part is not 
and the learned Judge ought to have held that the brother took in preference to the 
sister. The reasoning that the property should go to the father’s heirs because on marriage 
the woman's Gotra is her husband’s Gotra and her relations in her father’s family are not 
her Sagotra Sapindas but her Bhinna Gotra Sapindas or Bandhus, and further that in 
Bombay there is no preference given to males over females in Bandhus succession [citing 
Sajeppa v. Oangayya (k) and Manilal v. Bai Rewa (1) a Mayukh case] is, it is submitted, 
not sound. The learned Judge has discussed the question of Bandhu succession to the 
deceased woman. No such question has arisen in Hindu law. There was no dispute 
that on the facts the property had to go to the father’s heirs and the learned Judge had, 
in one place, come to that conclusion on the authorities. Then the only question was 
which of the two heirs of the father, namely, his son and daughter w'as to be preferred. 
Clearly the son is preferred to the daughter. However, even as far as Bandhu succession 
is concerned, there is no authority which lays down that male and female Bandhus related 
in the same degree take equally. No such proposition appears i-o have been laid down 
in the two cases relied upon. In Rajeppa v. Gangayya both the claimants were males, 
and all that was decided was that it made no difference that in one case there were two 
females intervening and that in the other there was only one. The case of Manilal v. 
Bai Rewa does not support the reasoning of the learned Judge in as much as there it 
was held that the daughters of the woman were to be preferred to her husband as her 
heirs. In the Privy Council case of Kenchava v. Giri Mallappa (1924) 48 Bom. 569, 
in a contest between the father’s sister’s son and father’s brother’s daughters, the son was 
preferred. [See also Jalindra Nath v. Nagendra Nath (1931) 58 I. A. 372, 59 Cal. 
576]. The principle of justice, equity and good conscience, also relied upon is hardly 
applicable. 

Where the woman dies childless. — ^It will be observed on comparing sec. 147 (2) with 
cl. iii of this section that when a woman dies childless, and the marriage was in an 
approved form, her Stridhana according to the Mitakshara goes to her husband’s heirs 
while under the Mayukha it goes to her heirs in her husband’s family. Notwithstanding 
this seeming dissimilarity between the language of the Mitakshara and the Mayukha, 
the heirs both under the JMitakshara and the Mayukha are the same (m). The reason is 
that a woman’s heirs in her husband’s family are no other than her husband's heirs. These 
are enumerated in note (1) to sec. 147 above. 


How is it that a woman’s heirs in her husband’s family are the same as her husband’s 
heirs ? The reason is, that it is a leading doctrine of the Mitakshara school that a wife 
becomes on marriage the sapinda of the husband, and her individual itv is merged in him. 
The wife, by her marriage, is born again in the husband’s family, and becomes half the body 
of the husband. It is by virtue of this doctrine that the husband’s sapindas become 
the sapindas of his wife. The wife’s sapindas, however, in her father’s family do not 
become the husband s sapindas. The reason for this lies in the wife’s subordinate position 
and dependence (n). 


(1) Vithal Tukaram v. Balu Bapu (1936) 60 
Bom. 671, 3a Bom. L. R. 520, 164 I C 
268, (’36) A. B. 283. 

(l) (1923) 47 Bom. 48, 77 I C. 219, (’22) A. B. 420. 

(/) (1893) 17 Bom. 758. 

(m) Vijiarangam v. Lakshuman (1871) 8 Boln. 

K.C.O.C.J. 244. See particularly remarks 


of West, J., at p. 257 et seq. where he 
compares both the Mitalmhara and the 
Mayukha law bearlug on the subject of 
Btrldhana. 

(n) Janqlubai v. JMa (1908) 32 Bom. 409, 413 ; 
Gojabai v. Shrimant .Hhahanrao (1893) 17 
Bora. 114, 118. 



SUCCESSION TO STltlDHANA. 


147 


D.— SUCCESSION TO STRIDHANA— MADRAS SCHOOL. 

152. Succession to stridhana— Madras school.^ — (J) The 
leading commentarie.s of the Madras school are the Smriti 
Chandrika and the Parasara Madhavya. Besides the said 
commentaries there are two other commentaries which are 
of more or less authority in the Madras school, namely, the 
Saraswati Vilasa and the Vyavahara Nirnaya. The recent 
tendency of the High Court of Madras has been, where the 
said commentaries do not agree with one another, to follow 
the Mitakshara not only as regards the definition of stridhana 
but as regards succession to stridhana [s. 118]. We propose, 
first, to state the rules of succession given in the Smriti 
Chandrika, and then to consider which of them have been 
rejected by the High Court of Madras. We select the Smriti 
Chandrika, for though by no means exhaustive on the question 
of succession to stridhana, it is more comprehensive than the 
other commentaries. 

(2) The Smriti Chandrika recognizes technical stridhana 
only, in other words it confines stridhana to gifts from relations 
made at any time, and gifts from strangers if made before the 
nuptial fire or at the bridal procession [s. 118]. It does not 
recognize non-technical stridhana. Like the, Mayukha, it 
divides stridhana, that is technical stridhana, into four classes, 
namely : — 

(1) sulka ; 

(2) yautaka ; 

(3) bJiartridatta and anwadheyaka ; and 

(4) other kinds of technical stridhana. 

Sulka is defined as wealth received as “ the price of 
household utensils, of beasts of burden, of milch cattle, or 
ornaments.” Yautaka, bhartridatta, and anwadheyaka, have 
already been defined in sec. 150. 

(3) Having noted the four classes of stridhana according 
to the Snariti Chandrika, we proceed to state the rules of succes- 
sion according to that authority. 

(i) Sulka devolves in the order mentioned in s. 146, 
sub-sec. (i). 


S. 152 



148 


HINDU LAW. 


S. 152 


(ii) Yautaka passes to — 

(1) unmarried daughters ; and then to 

(2) sons. 

(iii) BJiartridatta and anwadheyaka pass to sons and 

daughters, all inheriting together in equal shares. 

Daughters include maiden daughters and married 

daughters whose husbands are alive, but not 

widowed daughters. 

(iv) Other kinds of technical stridhaua pass in the 

following order 

(1) maiden daughters and married daughters, 

who are not provided for, all taking in 
equal shares ; 

(2) married daughters who are provided for ; 

(3) daughters’ daughters [s. 160] ; 

(4) daughters’ sons [s. 160] ; 

(5) sons ; 

(6) sons’ sons [s. 160]. 

If the woman dies without leaving issue, her stridhana 
of all descriptions (except sulka) passes, if she was married in 
an approved form, to her husband, and if she was married in 
an unapproved form, to her mother, and then to her father. 
There is no provision in the Smriti Chandrika for the case in 
which there is a failure of husband or mother and father. But 
the Parasara Madhavya cites a text of Brihaspati which is 
supposed to give a right of succession to certain relations 
named therein, immediately after the husband or father as 
the case may be [see sec. 153], 

As to yautaka, bluirlr'idattxi, and anwadheyaka, it will be 
observed that the Sinriti Chandrika makes no provision for 
the case in which there is a failure of sons and daughters. 

(4) Having noted the order of succession according to 
the Smriti Chandrika we proceed to consider the judicial 
decisions on the subject. Before doing so, however, it may 
be as well to remember that according to the Mitakshara 
stridhana of every description (excepting sulka) goes, first, to 



SUCCESSION TO STRIDHANA. 


149 


daughters, then to daughters’ children, and it is only on 
failure of these that it goes to sons. 

1. Yautaka, that is, gifts made at the time of marri- 

age. — There is no recent decision as to succession 
to yautaka. 

2. Bhartridatta, that is, gifts or bequests from the 

husband, and anwadheyaka, that is, gifts from 
relations made after marriage. — These two kinds 
of stridhana pass, according to the Smriti Chand- 
rika, to sons and daughters jointly, but according 
to the Mitakshara they pass to daughters in 
the first instance. The Madras High Court has 
preferred to order of succession given in the 
Mitakshara (o). 

3. As to the text of Brihaspati referred to above, the 

Madras High Court has refused to give effect to 
it on the ground that it is differently interpreted 
in the said four commentaries, and it has held 
that where a woman dies without leaving issue, 
her stridhana devolves according to the 
Mitakshara (p) [s. 147]. 

4. The Smriti Chandrika does not recognize non- 

technical stridhana ; therefore, there are no rules 
in that work for the descent of such stridhana. 
But the Madras High Court, following the Mitak- 
shara, has recognized as stridhana certain kinds 
of property which come within the category of 
non-technical stridhana, namely property given 
to a woman for her maintenance {q) and gifts 
from strangers though made during coverture (r), 
and has held that they pass according to the 
Mitakshara. 


E.— SUCCESSION TO STRIDHANA— MITHILA SCHOOL. 


153. Succession to stridhana— Mithila school. — The Vivada 
Chintamani, which is one of the leading authorities of the 
Mithila school, recognizes technical stridhana only, in other 


(o) Muthappudayan y.Ammuni (1808) 21 Mad. 
58 [gift from father after marriapt‘1; 
Bhujanga v. Rani'xyavun'j (1884) 7 Mad. 
337 [gift from husband of immoveable 
property], 

ip) Raju\. Ammani (1900)29 Mad. 358 ; .iVanja 


V, Sicabagyathachi (1913) 30 Mad. 116, 
12 I. C 128 

(g) Subratnanian v. ArunachrAum (1S05) 28 
Mad . 1 . 

(r) Sali/mma v. Lutchmma (18981 21 Mad. 
100 . 


Ss. 

152, 153 



150 


HINDU LAW. 


words, it confines stridliana to gifts from relations, and to 
gifts from strangers if made before the nuptial fire or at the 
bridal procession. It does not recognize non-technical stridliana 
[s. 119]. For the purpose of succession, it divides stridliana 
into three classes, namely : — 

(1) sulka, which is defined as property received by a 

woman at the time of her marriage, where the 
marriage has been celebrated in an unapproved 
form ; 

(2) yautaka, defined in sec. 150 ; and 

(3) technical stridhana of other descriptions. 

Siilka devolves in the order mentioned in s. 146 (i). 


Yautaka passes to unmarried daughters.* Failing these, 
it is conceived that it passes to married daughters, then to 
daughters’ daughters, and then to daughters’ sons, as in the 
Mitakshara (s). 


Technical stridhana of other descriptions passes to sons 
and unmarried daughters, all taking together in equal shares. 
Failing these, it is conceived that it passes to sons and married 
daughters' jointly, then to daughters’ daughters, and then to 
daughters’ sons. 


If the woman dies without leaving any issue, her stridhana 
(except sulka) devolves as under the Mitakshara [s. 147]. It 
has been so held by the High Court of Calcutta in a case from 
Mithila {t), though in a subsequent case {u) the same Court 
gave effect to a text of Brihaspati cited in the Vivada Ratna- 
kara which is another leading authority of the Mithila school. 
The effect of that text is stated to be that if a woman married 
in an approved form dies without leaving any issue or husband, 
her stridhana does not go to the husband’s heirs in the order 
of propinquity to him as under the Mitakshara, but to three 
special heirs named in the said text in preference to any other 
of the husband’s heirs, namely the husband’s sister’s son, 
husband’s brother’s son, and husband’s younger brother. 
If she is married in an unapproved form, and dies without 
leaving any issue or mother or father, her stridhana does not 
pass to her father’s heirs in the order of propinquity to him as 


(e) Katnla Prasad v. Murli Manohar (1034\ 13 
Pat. 550, 152 I. C. 446, (’34) A.P, 398.' 


«) Bachha v. Jugmon (1886) 12 Cal, 348. 

(tt) Afoftvn Pershads. Kishcn (1894) 21 Cal. 344. 



SUCCESSION TO STEIDHANA. 


151 


under the Mitakshara, but to the three special heirs named in 
the said text in preference to any other of the father’s heirs, 
namely her sister’s son, her brother’s son, and her son-in-law. 
But it is not at all clear in what order the said three relations 
in each set are to take (v). The Patna High Court recently 
followed the earlier Calcutta case and dissented from the later 
case {w). 

P.— SUCCESSION TO STRIDHANA— DAYABHAGA SCHOOL. 

154. Classification of stridhana. — Stridhana according to 
the Dayabhaga school [s. 120] may be divided, for the 
purposes of succession, into four classes, namely : — 

(1) Sulhz, that is, a present to induce the bride to go 
to her husband’s house. 

i 

(2) Yautaka, that is, gifts made at the time of marriage. 
This term has been interpreted by the High Court of Calcutta 
as including not only gifts made before the nuptial fire [sec. 113, 
sub-sec. (1)], but gifts made during the continuance of the 
marriage ceremonies (x). that is the ceremonies beginning 
with sraddha and ending with that of prostrating before the 
husband (y). It is conceived that it includes gifts from strangers 
made before the nuptial fire and at the bridal procession. 

(3) Gifts and bequests from the father made after 
marriage. [Gifts made by relations subsequent to marriage 
are called anivadheyaka. The present class relates to anwa- 
dheyaka from the father.] 

(4) Ayautaka, that is, gifts and bequests from relations 
made before or after marriage. This class includes gifts 
and bequests from the father made before marriage, but not 
those made after marriage. The latter come under the third 
class. Gifts from the father at the time of marriage fall within 
the second class. 


Sulka devolves in the order mentioned in s. 146, sub-s. (2). 

We proceed to state in the next three sections the order 
of succession to yautaka, anwadheyaka from the father, and 
ayautaka. 


{V) See Kefiserbai v. Haiisraj (1906) 30 Bom. 
431, 445-451, 33 I.A. 176, 190-197 where 
the text of Brihaspati is folly discussed. 
(u>) Samala Prasad y. Murli Manohar (1934) 


13 Pat. 550, 152 T.C. 446, (’34) A.P, 398. 
(a?) Bistoo PersJiad v. Radha Sunder (1871) 16 
W.R. 115. 

(y) See llaghunandana’s Dayattattwa, G. C. 
Bastri'a Traiislofciou, chap, ix., 15. 


Ss. 

153,154 



152 


HINDU LAW. 


3.155 155 . Succession to yautaka. — Yautaka [s. 154 (2)] passes 

ill the following order : — 

(1) unbetrothed daughters ; 

(2) betrothed daughters ; 

(3) married daughters who have (z), or are likely to 
have, sons ; 

(4) barren married daughters and childless widowed 
daughters taking together in equal shares ; 

( 5 ) sons ; 

(6) daughter’s sons [s. 160] ; 

(7) sons’ sons [s. 160] ; 

(8) sons’ sons’ sons ; 

(9) step-sons ; 

(10) step-sons’ sons ; 

(11) step-sons’ sons’ sons. 

If there be none of these, the succession depends upon the 
form of marriage. If the deceased was married in an approved 
form, the yautaka passes to the following heirs in succession, 
namely ; — 

(1) husband ; 

(2) brother ; 

(3) mother ; 

(4) father. 

If she was married in an unapproved form, it passes in 
the following order, namely : — • 

(1) mother; 

(2) father ; 

(3) brother ; 

(4) husband ; 

if there be none of these, the successive heirs are — 

(5) husband’s younger brother ; 

(6) husband’s brother’s son ; 


(*) The expres'jion " married duughtorH who 
have a son/' includes a " mdowed 


daughter havine a son," Charu Chundsr 
V. Nabo Sunderi (1891) 18 Cal. 327. 



SUCCESSION TO STRIDHANA. 


153 


(7) sister’s son {a) ; 

(8) husband’s sister’s son ; 

(9) brother’s son ; 

(10) daughter’s husband. 

The heirs beginning with the husband’s younger brother and ending with the 
daughter’s husband are heirs mentioned in a text of Brihaspati, as to which see the obser- 
vations of the Privy Council in Kesserl/ai v. Hunsraj (6), which was a case from the Bombay 
Presidency governed by the Mayukha law. See sec. 153, last paragraph. 

(11) husband’s sapindas, sakulyas and samanodakas ; 

(12) father’s kinsmen. 

156. Gifts and bequests from father after marriage — 
Property given or bequeathed by the father after marriage 
passes in the same order as yautaka [s. 155], with this 
difference that-^ 

(i) sons take before married daughters, and not after 

them as in the case of yautaka (c) ; and that 

(ii) where the woman dies without leaving issue the 

four immediate heirs take, not in either of the two 
orders given in sec. 155 but in the following order, 
namely : — 

(1) brother {d ) ; 

(2) mother (e) ; 

(3) father ; 

(4) husband. 


157, Succession to ayautaka . — Ayautaka [s. 154 (4)] 

passes in the following order : — 

.(1) sons and maiden (/) daughters (g), taking together 
in equal shares ; 

(2) married daughters who have, or are likely to have, 
sons ; 


(а) Sister's son includes stcp-sistcr’s sou • 

Da^haridhi Bipiti hchnrl (1905) 32 Cal. 
251 ; Shashi Bhushan v. Jtujrndra liath 
(1913) 40 Cal. 82, 15 1 C. 2*25 [step-sister's 
son excludes daunhter'a ban of great- 
gi'andson of ftrcat-grcat-graiidfutber of 
deceased’s husband J. 

(б) (1006) 30 Bom. 431, 441-452, 33 I.A. 176, 

190-197. 

(c) Prosanno Kumar v. .Saraf (1009) 36 Cal. 86. 

(d) Gopal Chandra v. Bam Chandra (1901) 28 

Cal. 311 [brother takes before husband). 


(«) Bam Gopal v, A’^araiu (1900) 33 Cal. 315 
[ mother takes before husband ). 

{/) It has l>een held that a maiden [coomaree] 
daughter means one not only ^unmarried 
but also iinbetrothed ; Sreenath v. Surbo 
(1868) 10 \V. B. 488. If so, a betrothed 
daughter would take after the sons and 
unbetrothed daughters, but before married 
daughters. 

ig) Basanta v. Kamikghya (1900) 33 Cal. 32, 82 
I.A. 181. 


Ss. 

155-157 



154 


HINDU LAW. 


(3) sons’ sons [s. 160] ; 

(4) daugliters’ sons [s. 160] ; 

Daughter’s son does not include step-daughter’s son (h). 

(5) barren married daughters and childless widowed 

daughters. 

The above order is according to the Dayabhaga. The Dayakrama Sangraha places 
the (1) son's son’s son, (2) step-son, (3) step-son’s son, and (4) step-son’s son's son before 
barren married and childless widowed daughters. 

If there be none of the above relations ayautaka passes 
to the following heirs in succession, irrespective of the form 
of marriage, namely ; — 

(1) brother; 

(2) mother ; 

(3) father ; 

(4) husband ; 

(5) husband ’s younger brother {i ) ; 

(6) husband’s brother’s son ; 

(7) sister’s son ; 

(8) husband’s sister’s son ; 

(9) brother’s son ; 

A brother’s son is preferred to a step-daughter’s son (j), as the latter is not included 
in the term ' daughter's son.’ Step-daughter’s son comes under (11) below. 

(10) daughter’s husband ; 

(11) husband's sapindas, sakulyas and samanodakas ; 

(12) father’s kinsmen. 

VI.— RULES COMMON TO ALL THE SCHOOLS. 

158. Escheat. — On failure of her husband’s heirs, the 
stridhana of a widow goes to her blood relations in preference 
to the Crown (k). 

(/i) KriJfhnabihari v. Sarojviee, (liKVd) 60 Cal. 

1061, 347 I.C 473, {’33)A.C.858. 

(j) Succeeds before the deceased woman’s step- 
brotlier ; Delnprasavna t . UareTidra (1010) 

37 Cal. 803, G I.C .'534. 

(j) KTVihnabihari v Sarojitiee (1933) GO Cal. 


t l.C. 473, (’33) A.C. 

(it) Kanakummul v, Ananlhamathi (1014) .37 
Mad. ldD3, 25 I. C. 001, (’1.5) A.M. 18 , 
V. .b'ecrelary o/ Sia\e (1021) 4r> 
Born. IIOG, 02 I. C. 100, (’21) A. B 138 . 
K^mdan v. Secretary of State (1920) 7 
Lah. 543 . 00 I. C. 805. r201 A. L. 673. 


Ss. 

57, 158 



SUCCESSION TO STRIDHANA. 


155 


159. Stridhana heirs take as tenants-in-common. — Two 

or more stridhana heirs inheriting stridhana together take 

as tenants-in-common without benefit of survivorship, even 
if they are members of a joint family (1). 

IllnstTotion. 

A female Hindu dies leaving two sons who are members of a joint family. The 
sons inherit the stridhana. They take as tenanta-in-common, and not as joint tenants. 
The result is that on the death of either of them, his share of the stridhana will pass to 
his heirs, and not to the survivor. 

160. Stridhana heirs take per stii'pes. — Stridhana heirs 

in the second generation, that is, son’s sons, daughter’s 
sons, and daughter’s daughters, take per stirpes, and not per 
capita (m). 

lUuslration. 

A female Hindu dfca leaving two sone by a daughter A, and throe sons by another 
daughter B. Her stridhana will be divided into two parts, of which one will go to the 
two sons of A, and the other to the throe sons of B. To divide it per capita would bo 
to divide it intoyrc e(iual parts, and to give one share to each of the five grandsons. 

161. Where stridhana heir a male. — A male inheriting 

stridhana takes it absolutely, and on his death it passes to 
his heirs. 


Stridhana heirs are either males, such as sons, daughter's sons, son's sons, etc., 
or they are females, such as daughters, daughter’s daughters, etc. 

162. Where stridhana heir a female. — ^According to 
the Bombay school, a female inheriting stridhana takes it 
absolutely, and on her death it passes to her heirs [s. 171]. 

According to all other schools a female inheriting stridhana 
takes a limited interest in it, and on her death it passes not 
to her heirs, hut to the next stridhana heir of the female from 
whom she inherited it (s. 169). 


163. Illegitimate children : succession to stridhana. — 
(i) The illegitimate children of a Hindu woman are not 
excluded from inheritance to their mother’s stridhana {n). 


(i) Bai Parsott v. Bai Soinli (1912) 36 Bom. i 
424, 15 I. C. 774 ; Karuppai v, Sankara- 
narayatian (1905) 27 Mad. 300 ; Jafjan- 
7iath V. I^arayan (1910) 34 Bom. 553, 
558, 7 I.C. 450. 

(m) Mitakshara, chap, ii, sec. ii, para. 16 , Mayu- j 
kha, chap. 4, sec. 10, para. 21 ; Smriti 
Chanclrika, chap. 9, sec. 3, para. 25 ; | 
Banerjee'a “ Hindu Law of Marriage and I 


Stridhana," 5th ed., pp. 411, 421, see aho 
Karuppai v. Sankaranarayanan (1904) 27 
Mad. 300, 308, and Nagesh v. Gururao 
(1893) 17 Bom. 303, 305-306. 

(n) Ghose’s Hindu Law, 3rd cd., p. 763 , -Iruna- 
ffiri V, Eanganayaki (1898) 21 Mad. 40; 
Dnndappa v. Bhimawa (1921 ) 45 Bom. 557, 
59 I.C. 661, (’21) A.B. 137 [Sudra]. 


Ss. 

159.163 



156 


HINDU LAW 


But when a woman dies leaving both legitimate and 
illegitimate children, the legitimate children are preferred 
to the illegitimate (o). 

(2) The illegitimate sons of a Hindu woman are entitled 
to succeed to each other (p). But an illegitimate daughter’s 
daughter cannot succeed to her grand-mother’s stridhana (q). 

Soa note (5) to sec. 147. 


164. Succession to property of dancing girls (naikins) and 
prostitutes. — (1) Though prostitution, according to the Hindu 
law, entails degradation and loss of caste, it does not sever 
the tie which connects the prostitute to her kindred by 
blood, nor does it sever the tie of kindred between her and 
the members of her husband’s family when she becomes 
a prostitute after marriage. Consequently the property 
of a prostitute devolves as if it were her stridhana, so that her 
brother, her sister, her brother’s son and other relations by 
blood, and her husband, her step-son and her husband’s other 
sapindas are entitled to inherit to her (r). 

(2) Where a married woman becomes a prostitute after 
her husband’s death and dies leaving a son born in lawful 
wedlock and a daughter born in prostitution, the legitimate 
son excludes the illegitimate daughter (s). 

(3) The sons of a dancing woman, though by 
different fathers, are entitled to succeed to each other. 
Similarly, the legitimate son of one of such sons is entitled to 
succeed to them, and also to their legitimate sons (i)- 


(4) Where a woman of the “ dancing girl ” caste does 
not follow her traditional calling but marries and leads the 
life of an ordinary married woman and reverts to her original 
calhng after widowhood, it has been held that her position 
is not different from that of an unchaste married woman and 


(o) ^eena/cshi v, .Vt/niandi (I91.'j) 38 Mail. 1144, 

25 I.C. 957, (’15) A.M. 03 [lc(;itlnmte aon 
preferred to illegitimate daughter ] ; 
Jaffannat/i v. Caravan (1910) 34 Horn. 
5.53, 559, 7 I.C. 459. 

(p) M//na Bovee v. Ootaram (1801) 8 M.I.A. 

400 ; Mavna Bax v, VUaram (1864) 2 
Mad. H.(;. 190 

(7) ^teei\akxhi Amm'il v. Maragayya Mooppanar 
(1940) Mad. 139, 191 I.C. 00, (’40) A M. 
463, (1940) 1 M.L..T. 288. 


Sablaraya v. /famo«H7»i(1900) 2S^Mad. 171 
[8tcp-3onJ ; Narain Das v, Txrlok (1907) 
29 All. 4 [husband]; Hiralal v. iTrtpura 
(1913) 40 Cal. 650, 19 I.C. 129 [F.B 1 
[hrother'8 bod] ; Narayatx v. Laxma^ 
(1927) 51 Bom. 784, 100 I.C. 87, ('27) A B- 

456. Seealso ..idt'yopa V. /?udroi'a(1880) 4 

Bora. 104. ,, , 

Mtrnakshi v. Muniandx (1915) 38 Mao. 

1114, 25 I.C. 957, (’15) A.M. 63. 
Viswnnatha v. Doraiswami (1925) 48 Mad. 
044, 91 I.C. 193. ('20) A.M. 289. 



SUCCESSION TO STRIDHANA. 


157 


her jjroperty devolves on her heirs according to ordinary Hindu 
law, that is, when it descends to daughters they take only a 
limited estate and a mortgage by them does not bind the 
reversioners {u). 

Illustrations. 

(a) A and B are the two sons of a prostitute by different fathers. A dies leaving 
B. B is entitled to succeed to A. 

(b) A and B are the two sons of a prostitute by different fathers. A dies leaving 
a legitimate son C. Then B dies leaving 0. C is entitled to succeed to B. 

(c) A and B arc the tvv’o sons of a prostitute by different fathers. A dies leaving 
a legitimate son C. Then B dies leaving a legitimate son D. Then D dies leaving C. 
C is entitled to succeed to D. The same principle applies to the remote legitimate 
descendants of A and B. 


In the Madras case on which sub-sec. (3) of the present section is based Devadoss 
J., said : “ It is a misnomer to call the son of a dancing woman, whose paternity 

is unknown, an illegitimate son. The illegitimate son is one bom out of lawful 
wedlock, no marriage was solemnized between the father and the mother. In the 
case of sons of prostitutes or dancing women the paternity is unknown and it is only 
an euphemism to call them illegitimate sons. In Roman law they are called Nullius 
Filius, Dancing women have their peculiar customs. Their status is recognized 
in Hindu society. Their customs have received the sanction of judicial decisions, and 
the adoption of girls by them is recognized by law, and the daughters of dancing 
w'omcn inherit in preference to their sons ” (v). 

165. Contracts by married women. — A Hindu wife is 
competent to contract, but her liability under the contract 
is limited to her stridhana {w). 


(ii) BalamniUiravi v. Kamaksfn Aminul (1937) 
Mad. 257 (’36) A.M. 958. 

(c) (1925) 48 Mad. 944, 948, 91 I.C. 193, (’26) 
A.M. 289, supra. 


(w) Nathnbhai v. Jarher (1870) 1 Bom. 121; 
Goi'indn V. Lokiaidaff (1880) 4 Bom. 313 ; 
Naralamy. A'an/ta (1882) 6 Bom. 473, Rndhi 
Ml re the PetUimi of {1888) 12 Bom. 223. 


Ss. 

164, 16> 



158 


CHAPTEE XI. 

WOMAN’S PEOPERTY. 


PART II. PROPERTY ACQUIRED BY A WOMAN BY INHERITANCE. 

1. Devolution of property inherited by female — secs. 168-173. 

2. Power of female heirs over such property — secs, 174-199. 

3. liemedies against unauthorised acts of female heirs — secs, 202-210, 

(1) “The husband’s {daya) gift (or heritage), a woman may deal witli according 
to her pleasure when the husband is dead ; but when he is alive, she shall carefully 
preserve it, or if she is unable to do the same, she shall commit it to the care of his 
kindred.” 

(2) “A sonless (widow) keeping unsullied the bed of her lord and abiding by 
her venerable protector, shall, being moderate, enjoy until death ; afterwq.rd8 the heirs 
shall take,” — Kalyayana. 

[Note. — The above texts are the only authorities for restricting the rights of aM’idow 
in property inherited by her from her husband. As to text (2) G. Sarkar is of opinion 
that it really relates to stridhana consisting of immoveable property given by the husband, 
and not to property inherited by her from him (see sec. 141) ]. 

Ss. 

166,167 166. Property inherited by males. — When a mal(3 

succeeds as heir, whether to a male or to a fernale, he become.s 
full owner of the property inherited by him, and the property 
at his death passes to his heirs. The only recognized exception 
to this rule is where property is inherited by a Hindu governed 
by the Mitakshara law from his father, paternal -grandfather 
or great-grandfather. 

Illuslralioni. \ ) 

(a) A male Hindu dies leaving a brother. Tho brother will succeed to his property, 
and he wdl take it as full owner and on his death it will pass to his heirs. [This is nn 
illustration of property inherited hj- a male from a moie.] 

(h) A female Hindu,_,who is possessed of stridhana, dies leaving a son. Tho son, 
as stridhana hejr, 'will succeed to the property, and he will take it as full owner thereof, 
and on his death it will pass to his heirs. [This is an illustration of property inherited 
by a male from a female]. 

Except in the cases mentioned in the section, a Hindu male inheriting property 
whether from a male or from a female, has all the powers of a full owner over that 
property. He can sell it, or dispose ^f it by gift or by will, at his pleasure. Further, 
he becomes & fresh stock of descent, th'atTs to say, the property at his death passes to his 
heirs. The rule of Hindu law is different in the case of property inherited by fernale heirs, 
as will be seen presently. 

167. Property inherited by females.-— The present chapter 
deals with property inherited by females from males as well as 
females. It may be con-sidered under three heads, namely ; — 

(1) Devolution of property inherited by females. 

(2) Powers of female heirs over such property. 

(3) Remedies against unauthorized acts of a widow and 

other female heirs. 



PROPERTY INHERITED BY WOMEN. 


159 


I— SUCCESSION TO PROPERTY INHERITED BY FEMALES. 

168. Property inherited by females from males— in territories 
other than the Bombay Presidency.— {-{) According to the 
Bengal school, the only females who can inherit the property 
of a male are (1) the widow, (2) daughter, (3) mother, (4) father’s 
mother, and (5) father’s father’s mother [sec. 61]. 

(2) Before the Hindu Law of Inheritance (Amendment) 
Act, 1929, the only females who could inherit to a male were 
the five mentioned in sub-sec. (1). By that Act three more 
females have been constituted heirs, namely, the son’s daughter, 
daughter’s daughter, and sister. 

(3) The Madras school recognizes not only the said five 
female heirs, but others also, being those mentioned in sec. 56. 
These include the son’s daughter, daughter’s daughter and 
sister who are now expressly mentioned as heirs in the Act 
of 1929. The only difference is that while before the Act 
they succeeded as baudhus, under the Act they inherit with 
gotraja sapindas. See sec. 43, nos. 13A, 13B, and 13C. See 
also sec. 6lA. 

(4) According to the Bengal, Benares, Mithila and Madras 
schools, every female, whether she be a widow (x), daughter (y), 
mother (z), father’s mother (o), or father’s father’s mother, 
who succeeds as heir to the property of a male, takes only a 
limited estate in the property inJierited by her, and at her 
death the property passes not to her heir, but to the next heir 
of the male from whom she inherited it. [As to Bombay 
school, see sec. 170]. 

The son’s daughter, daughter’s daughter, and sister, 
who are now expressly mentioned as heirs in the Hindu Law 
of Inheritance (Amendment) Act, 1929, also take a limited 
estate, according to these schools, in the property inherited 
by them from the last male owner. 

lUustratione, 

(a) A, a Hindu male governed by the Bengal school of Hindu Law, dies leaving 
a widow and a brother. On .4*8 death, the widow succeeds as his heir. The widow 
then dies leaving a daughter’s daughter. The widow’s stridhana will pass to the 


(.t) Collector of Masiilipatam v. Cat alt/ Vencala 
(1861) 8 M I. A. 520 : Mst. Thakoor 
Deyhee v. Itai Baluk iiawi(1867) 11 M I. A. 
139 ; BhugivandecM v. Myna Bate (1866) 
11 M.T.A. 487. 

{y) Chotay Ball v. Chvnnoo tail (1878) 4 Cal. 
744. 6 T.A. 15 ; Malta v. Dorosinga (1881) 
3 Mad. 200, 8 I. A. 99 , VenkayyaiHma v. 
Venkataramana^/t/amma (1902) 26 Mad. 
C78, 29 T.A. 156. 


(c) Backira)a v. V enkatappadu (1865) 2 Mad. 
H. C. 402 ; Kuiti v. liadakrishna (1875) 
8Mad.H.C.88; Jnllessury. Uggur{lS83) 
0 Cal, 725 ; HemiaUa v. Goluck Chundcr 
(1842) 7 Ben. Sel. Tl. 108 (new edition 
127). 

(a) Pkukar Singh v. Banjit Singh (1878) 1 AH 
061. 


S. 168 



160 


HINDU LAW. 


Ss. 

168, 169 


daughter’s daughter as her stridhana heir, but the property inherited by her from her 
husband A will pass to the next heir of her husband, namely, his brother. 

(b) A, a Hindu male governed by the Benares school of Hindu Law, dies in 1928 
leaving a daughter and a paternal uncle. On A’s death the daughter succeeds as his heir. 
The daughter then dies leaving a daughter. The daughter’s stridhana will pass to her 
daughter as her heir, but the property- inAertleii by her from her father A will pass to the 
next heir of her father, namely, his paternal uncle. If A’s daughter dies in 1930, after 
the Hindu Law of Inheritance (Amendment) Act, 1929, came into force, the daughter's 
daughter, and not the uncle, will succeed to A’s estate as heir. [ Vide notes to sec. 43, 
13 (C).] 

According to all the schools other than the Bombay school Cl female inheriting to a male 
[sec. 168] or to a female [see. 169] is not full owner of the property inherited by her. Her 
power to deal with the property is limited. Sho cannot alienate it except for legal 
necessity. Nor does she become a fresh stock of descent. At her death the property 
passes not to her heirs, but to the next heir of the last full owner. This result has been 
arrived at by construing the texts of Katyayana cited above as imposing a limitation on 
the powers of a widow to deal with property inherited by her from her husband, and the 
rule is then applied to other female heirs by construing the word “ widow ” in those texts 
as referring to other female heirs also, namely, daughter, mother, father’s mother, father's 
father’s mother, etc. 


Survivorship as between daughters . — See sec. 43, no. 5, note (2). 


Custom . — A Hindu widow may by custom be entitled to her husband’s property 
absolutely (6). 


Jains . — According to the custom prevailing in U.P. and Bengal, a Jain widow 
takes an absolute interest in the self-acquired property of her husband inherited by 
her (c), but in U.P., not in ancestral property left by him (d). 


169. Property inherited by females from females— in terri- 
tories other than the Bombay Presidency.— According to the 
Bengal, Benares, Mithila and Madras schools, the rule laid 
down in sec. 168, sub-sec. (d), as to property inherited a 
female from a male, applies also to property inherited by 
from a female- Consequently a ’ female inheriting proper^ 
[stridhana] from a female takes only a limited estate in such 
property, and at her death the property passes not to her heirs, 
but to the next stridhana heir of the female from whom she 
inherited it (e). [As to Bombay school, see sec. 171.] 


(6) Krishna Bai v. SecreLary of Slate (1920) 42 
All. 555, 57 I.C. 520, ('20) A.A. 101 
[BiA’anir], 

(c) Sheo Sine/h v. DaJcbo (1878) 5 I. A. 87, 1 All, 

088 , Shimbhu y<ithv. Ouyan Chnnd 
16 All. 379; Uarnahh v. Mandil (1900) 
27 Cal. 379. 

(d) Puhar Singh v. Skatnsher Jang (1031) 29 

All.L J. 314, 133 I.C 785. ('31) A.A. 695; 
Allah Dvfa v. Sana Veil (1042) All. 745 
204 I.C. 133 (*42) A.A. 331. 

(e) Sheo Shankar Lai v. Deri Sahai (1003) 25 

All. 408, 30 I. A. 202 [daupchter <yiiccccding 
to her mother], explained m A'ubramantan 


V. Arunacheiam ^1905) 28 Mad 1, 9-12 ; 
Lai Sheo PertaO v. Allahabad Bank (1903) 
25 All. 476, 30 I. A. 209 ; Venkataruma v. 
Bhujajigu (1896) 19 Mart. 107 ; Virasan- 
gappa v, Hudrappa (1800) 19 Mart. 110, 
Jtaju V. Aminani (1906) 29 Mart. 358, 
Jannkisetly v. Minyala (1909) 32 Mad. 
521, 3 I C. 281 ; Hari Doyal v. (insh 
Chunder (1890) 17 Cal. DU . Jogendra v 
Phani (1916) 43 Cal. 64, 33 1 C. 810, 
('16) A.C. 928; Shi.n lixharilal v Ram 
Kali (1923) 45 All 715. 75 I C. 495, ('24) 
A.A. 15; Matru Mai v Mehen Knnvar 
(1940) All. 410, 1891. C 000. ('40) A.A . 311. 



PROPEETY INHERITED BY WOMEN. 


161 


Ss. 

169, 170 


It wiL be seen from what is stated above that according to all the schools except 
the Bombay school there is no distinction between property inherited by a fern lie from 
a male and that inherited by her from a female. Both these kinds of property pass to 
the next heirs of the last full owner. 

170. Property inherited by females from males— in the 
Bombay Presidency. — (1) Besides the five females who can 
inherit to a male in all the schools, namely (1) the widow, 
(2) daughter, (3) mother, (4) father’s mother, and (5) father’s 
father’s mother, the Bombay school recognises other females 
as heirs, namely, daughters of descendants, ascendants and 
collaterals within five degrees, and widows of gotraja sapindas. 
These include the three females now specifically mentioned as 
heirs in the Hindu Law of Inheritartofe (Amendment) Act, 1929, 
namely, the son’s daughter, the daughter’s daughter, both these 
being daughters of descendants, and the sister, she being a 
daughter of an ascendant (father). 

(2) As regards property inherited/rom males, female heirs 
under the Bombay school are divided into two classes, 
namely : — 

(i) those who come into the gotra of the deceased owner, 

■^0 by marriage, that is, the wife of the deceased and 

') the wives of his sapindas and samanodakas 

[sec. 68] ; and 

(ii) those who are born in the gotra of the deceased owner, 
but pass by marriage into a different gotra, and 
their daughters. This class includes a daughter, 
son’s daughter, daughter’s daughter, sister, niece, 
grandniece, father’s sister, and the like (/). See 
notes to sec. 130. 

The son’s daughter, daughter’s daughter, and sister are now expressly mentioned 
as heirs in the Hindu Law of Inheritance (Amendment) Act, iD3D. See sec. 43, nos. 
13A, 13B. and 130. 


llhisiraiion. 

A, a female Hindu, who is possessed of stridhana, dies leaving a daughter. On 
death her stridhana passes to her daughter as her stridhana heir. The daughter, 
however, takes a limited estate in the stridhana. She does not become the full owner 
of the property. It is not stridhana in her hands, and on her death it will pass not to her 
heirs, but to the next stridhana heirs of A to whom it originally belonged. As to who 
those heirs are depends on the cliaracter of the stridhana. 


(f) West and Biihler, 4th od., p. 120, f. n. fn) ; 
Txdjaram v. Malhuradaa (1881) 6 Bom. 


662, 070, 672. 



162 


HINDU LAW. 


S. 170 


Females coming under class (i), such as a widow {g), 
mother [h), father’s mother {i), father’s father’s mother, and 
widows of gotraja sapindas {j), e.g., son’s widow (^), brother’s 
widow, uncle’s widow, etc., take a limited estate in the 
property inherited by them from males, and on their death the 
property passes not to their heirs, but to next heir of the male 
from whom they inherited it (Z). And this is so even if such 
a female, succeeds immediately after the death of another 
female who was the widow of a gotraja sapinda and who had 
previously inherited the property [See ill. (2)]. 

Females coming under class (ii), such as a daughter (m), 
son’s daughter, daughter’s daughter, ' sister {n), father’s sister, 
niece (o), grandniece (p), sister’s daughter and the like, take 
the property inherited by them from males absolutely, that is, 
they become full owners thereof. Such property becomes 
stridhana in their hands, so that in cases governed by the 
Mitakshara law {q), it passes to the stridhana heirs mentioned 
in sec. 147, cl. (2), and in cases governed by the Mayukha (r), 
it passes to the stridhana heirs mentioned in s. 151, cl. II. 


lllmlraixons. 


(1) A male Hindu, governed by the Bombay school, dies leaving a daughter. On liis 
death, the daughter succeeds to the property as his heir. She takes the estate absolutely. 
She can dispose of it by gift or will. If she dies intestate, the property will go to her 
stridhana heirs, and not to the next heir.s of her father. Thus if she dies leaving a son 
and a daughter, then, if she is governed by the Rlitakshara law, the property will pass to 
her daughter, and if she is governed by the Majoikha, the property will pa.ss to her son. 
[Contrast this with ill. (b) to s. 168.] 


(2) N and R are divided brothers. H dies leaving a son T. Then N dies leaving 
a widow J. Then T dies leaving a widow M. Then J dies and on her death M succeeds 
to iV’s property as N's brother’s [A’s] son’s [^T’s] widow. Here M inherits the property 


{g) Bhaskar v. ZSahadev (1809) 0 J3om. n. C. 

0. C. I. 

{h) V rijbhnkandas v. Bai Parvaii (1908) 32 Bom. 
20 ; Narsapjpa y. iSaiAaram (1869) 6 Bom. 
H.C., A.C. 215 ; Vinayak v. Lakshmibox 
(1861)1 Bom. H.C. 117. 

(i) Bhondi v. liudhabai (1912) 36 Bom. 646, 16 

1. C. 343 ; Madhavram v. Dave (1897) 21 
Bom. 739, 744. 

(f) lAilloobhov V. Mankuvarbai (1878) 2 Bom. 
388, affd. subnom ; Zulloobkoy v. Catstbai 
(1881) 5 Bom. 110, 7 I.A. 212 ; (1897) 21 
Bom, 739, supra. 

(fc) Gadadhar v. Chandrabhagabai (1892) 17 
Bora. 090 [F. B.l. 

(l) Bhan v. Raghunath (1906) 30 Bom. 229, 

237, per Jenkins, 0. J. 

(m) Balwant Rao v. Ba^i Rao (1920) 47 I.A. 213, 

48 Cai. 30, 57 I.C. 645, (’21) A.PC. 50; 
Pranjivandaa v. Devkuvarluii (18^^) 1 Bom. 
H.C. 130 ; Saribhal v. Damodarbhat (1879) 
8 Bom. 171 ; BuUikhidas v* Kethavlal 
(1882) 6 Bom. 85 ; Babajiy. Balaji (1881) 
6 Bom, 660 ; Bhagirthibai v. Kahnvjirav 


(1887) 11 Bom. 285 ; Jankibai v. Sundra 
(1890) 14 Bom. 612 ; Qulappa v. Tayawa 
(1907) 31 Bom. 453; Viiappa v. Santri 
(1910) 34 Bom. 510, 7 I.C. 445 ; Jawahir 
lal V. Jarau Lnl (1924) 46 All. 192, 79 
I.C. 861, (’24) A.A. 350 [Nagar Brahmansj. 

(n) Vinayak v. Lakshmibai (1801) 1 Bom. 
H. C. 117, alBm\e(l In Venayeck v. 
Luxemeebaee (1864) 9 BI. I. A. 520 ; 
Rindabai v, Anacharya (1891) 15 Bom, 
206. 

(0) (1897) 21 Bom. 739, 744, supra. 

(p) Tuyara?nv, (1881) 5 Bom. 602, 

(7) (1907) 31 Bom. 453, supra, 

(r) Vijiarangam v. Lakshuman (1871) 8 Bom. 
H.C. O.C. 244. So much of this decision 
as lays down that the property will <ie8- 
cend as If the daughter was a male is no 
longer law, having regard to the decision 
in Manilal v. Bai Rewa (1893) 17 Bom. 
758, which was approved by the Privy 
Council in Kesserbai v, Hunsraj (1906) 
30 Bom. 431, 33 I.A. 176. 



PROPERTY INHERITED BY WOMEN. 


163 


of Nf a male, and she inherits it as a widow of a gotraja sapinda. She therefore tafeea 
only a limited estate, though she succeeds immediately after the death of another female 
J. J, as N'a widow, took only a Hindu widow's estate. She could not, therefore, he a 
fresh stock of descent. What M inherits is not the property of d, but of her husband 
N (a). 

According to the Bombay school, two or more daughters, sisters, or nieces, take an 
absolute estate in severalty, and not as joint tenants {t). Any one of them may, therefore, 
alienate her share by sale or gift or give it by will. 

It will be seen from what has been stated above that in the Bombay Presidency, 
the general leaning is in favour of women's proprietary capacity. In other parts of 
British India, the principle is that property inherited by a woman cannot stay in the 
family into which she has married, but must revert in every case to the family in which 
she was born. 


171. Property inherited by females from females— in the 
Bombay Presidency. — (i) According to the Bombay school, a 
female inheriting property from a/emale takes it absolutely, that 
is, she becomes full owner thereof. Such property becomes 
stridhana in her hands, so that in cases governed by the 
Mitakshara, it passes to the stridhana heirs mentioned in. 
sec. 147. cl. (2), and in cases governed by the Mayukha it 
passes to the stridhana heirs mentioned in sec. 151. cl. II. 
[See ill. (1).] 


(2) . The same rule applies though the female inheriting 
from a female inherits as the widow of a gotraja sapinda. 
[See ill. (2).] 

Illustrations. 

(1) A, a Hindu male, governed by the Bombay school, dies leaving a daught-eraad 
mother. The daughter succeeds to A^s property as his heir. Being a daughrer she 
takes the property absolutely [s, 170], and on her death it will pass to her stridhana hear , 
Suppose now that the daughter dies a maiden, leaving her father's mother as her only 
heir. The father’s mother will take [s. 145] the property as st-ridhana under 

the present section with power to dispose of it by gift or will, and on her death im>cstat e 
the property will pass to her stridhana heirs (m). [Note that a father's mother inherilAng 
to her grandson takes a limited estate, and on her death the projierty passes not- 
her heirs, but to the next heirs of the grandson. Tn the ease given in the illustra^ioiv, 
she inherits to her grand-daughter. Contrast this with the illustration to a. 


( 2 ) A, a Hindu male, governed by the Bombay school, dies leaving a a 

widow IF, of a predeceased son. On A’s death suecoeils to his estato. Then 
leaving a daughter D. D, as a daugliter, takes an absidute osuUo in the pri^pc^rty of her 
father 8 . D then dies a maiden. On her tleath B’ suoeeed.s to her estate as the ii.wvst 
sapinda of D’a father 8 f being D'b father's brother's widow [s. 145 ]. IF takes an sWo’e-l-e 


(*) Maclhuvram v. Bare (1BI)7) Idl Ikjin. 7Ht>. 

(t) VUfuippav. Saciiri (lUJO) 34 Jltmi. fllO, “ 

J-U. 445 ; Jlindnbai v. Anachurya (ISIM) 
15 Bom. 200. 

(u) Gandhi fdaijanlal v. liui Jadab (lOOO) 24 


Itmi. 102 iV.n.l 
InluTtttiu; xinutbtu- \v 

104, 137 1.0 :'0, I'o:' \ B 'is. 

\ ,UKV>SOB. v. L’ett eb' 


Ss» 

170,171 



164 


HINDU LAW. 


Ss. interest in D’s property, though she inherits as the widow of a gotraja sapinda, that is 

171473 aa D'b uncle’s ■widow (ti). 

(3) P died in 1890. In 1904 his widow U adopted B. A auit between V and B 
was compromised, V being given a life interest in the immoveable property and the 
remainder being vested in B. B died in 1916 leaving hia ■widow L who died in December 
1916, and an infant daughter who died in January 1917. Here when B died his widow 
L took a limited estate in his property. When L died his infant daughter succeeded to 
it absolutely and XJ succeeded to her under the rule in tins section. V, therefore, takes 
an absolute estate in the remainder belonging to B. This added to her life estate, makes 
her absolute owner of the property. It must be observed that V does not succeed to 
B but to Ms infant daughter (to). 

172. Share allotted to a woman on partition. — The share 
allotted to a wife, mother or father’s mother on partition is 
not her stridhana, unless it was given absolutely to her, and it 
descends on her death not to her heirs, but -to the sons or grand- 
sons out of whose portion it was taken. See^s. 128 above. 

173. Summary of sections 168 to 171. — The following is a 
summary of the rules contained in ss. 168 to 171 : — 

(7) According to the Bengal, Benares, Mithila and Madras 
schools, every female who succeeds as an heir, whether to a 
male or to a female, takes a limited estate in the property 
inherited by her, and on her death the property passes not 
to her heirs, but to the next heir of the last full owner. 

(2) According to the Bombay school — 

(a) Property inherited by every female from a 

female, and property inherited from a male by 
female heirs other than those who come into 
the gotra of the deceased owner by marriage, 
is stridhana, and the provisions of the last 
chapter apply to it ; but 

(b) Females who come into the gotra of the deceased 

owner by marriage take a limited estate in the 
property inherited by them from a male, and 
on their death the property passes to the next 
heir of the last full owner. 

(5) The expression “ limited estate ” in this section is used 
in contradistinction to “stridhana ” or “ absolute estate.” The 
rest of this chapter deals with the incidents of “ limited estate.” 

(r) Nf^a^anv. Waman ('iQ22) 46 Bom. 17, 63 {w) ParshoUam Bahechardas v. Eeshav Dal^pat- 

I C. 1001. ( 22) A.B, 134. ram (1932) 56 Bom. 164, 137 I.C. 561, 

(’32) A.B 213. 



EEVERSIONEES. 


165 


II.— POWERS OF FEMALE HEIRS OVER INHERITED PROPERTY. 

174. Limited heirs. — (i) According to the Bengal, 
Benares, Mithila and Madras schools every female who 
succeeds as an heir, whether to a male or to a female, takes a 
limited estate in the property inherited by her [ss. 168-169], 
Thus a widow, daughter, mother, father’s mother, father’s 
father’s mother, son’s daughter, daughter’s daughter, and 
sister take a limited estate. So do female bandhus in the 
Madras Presidency. And so do all female stridhana heirs. 

{2) In the Bombay Presidency, every female who succeeds 
as an heir to a female takes the property absolutely [s. 171]. 
But as regards property inherited from a male, those females 
who by marriage have entered into the gotra (family) of the 
deceased owner take a limited estate, while other female heirs 
take absolutely {x}. Thus a widow, mother, father’s mother, 
father’s father’s mother, and widows of gotraja sapindas, e.g., 
son’s widow, brother’s widow, uncle’s widow,, etc., take a 
limited estate. All these are females who come into the 
gotra of the deceased by marriage. All other female heirs 
such as a daughter, sister, niece, etc., take absolutely [s. 170]. 

{3) It follows from what has been stated above that the 
following females, inheriting from a male, take a limited estate 
according to all the schools, namely, (1) widow, (2) mother, 
(3) father’s mother, and (4) father’s father’s mother. The 
daughter takes absolutely in the Bombay school ; in every 
other school she takes a bmited estate. The son’s daughter, 
daughter’s daughter, and sister, who are now expressly 
mentioned as heirs in the Hindu Law of Inheritance (Amend- 
ment) Act, 1929, also take absolutely in the Bombay school ; 
in every other school they take a limited estate. 

(4) Pemales who take a limited or restricted estate in 
property inherited by them are hereinafter called “ limited 
heirs.” 

175. Reversioners. — (?) The heirs of the last full 
owner, who would be entitled to succeed to the estate of such 
owner on the death of a widow or other limited heir, if they 
be then living, are called “ reversioners.” A reversioner may 
be a male or a female {y). 

Id Oandhi Uaganlal v. Bai Jadab (1900) 24 H!i, 154, 5 Cal. 770, 739-790; Sham 

Booi. 192, 214 [F.B.], v. A.chhan Kuncar (1899) 21 All. 

(y) Maniram v. Keri Kolitani (1880) 7 I. A. 71, 25 I. A. 183. 


Ss. 

174, 175 



166 


HIXDU LAW. 


s,i75 


(2) Interest of rerersioners . — The interest of a reversioner 
h an interest exjtedant on the death of a limited heir. It is 
not a rested interesl. It is a sjies successionis or a mere- citaim 
of meeesHion within the meaning of the Transfer of Property 
Aet. 1882, sec. 6. It cannot, therefore, be sold, mortgaged 
or assigned; nor can it be relinquished. A transfer of a $pes 
mecessionis is a nullity, and it has no effect in law (z). The 
widow as guardian of a min or reversioner and not as represent- 
ing the estate cannot enter into a comprorai.se or agreement to 
refer di.sputes to arbitration so as to affect the minor s rights 
when the estate comes into the minor's possession (a). But 
the interest of a reversioner is an interest within the meaning of 
s, 174 Bengal Tenancy Act and the reversioner is a person 
" interested " within the meaning of s. 17 of the same act (6). 

(-3) '^Vhere there are several rwersioners entitled 
successively to .succeed to an estate held for life by a Hindu 
widow, no one of such reversioner can be said to claim through 
or derive his title from another reversioner, but each derives 
his title from the last full o^vner (c), 

lUu^siraiions, 

A Hirjdu* A, leaving a vidow, a brother, a son of that brother* and an uncle. 
Here the brother, hia son, and the uncle are all reveraioners. The brother is the “ next 
or ** presumptive revcTsioner. The other reversioners are “ remote " or “ contingent ’ 
reverflioTserH. If the brother dies in the -widow’s lifetime, his son becomes the ‘"next ” 
reversioner. Sujipoae now that the brother dies first, and then the widow. In that case 
the brother's son will succeed to A'fi estate, not as the heir of his father, for A's property 
never vested in his father, ifut as //*« heir of his uncle, A. 

(b) A Hindu, F, dies leaving a widow, A, a mother, B, a father’s mother, C, and 
a father's brother, X>. Here there are three reversioners of w'hom two, namely, B and 
C, are females, and one, namely, D, is a male. On X’s death, his widow, A, will succeed to 


(z/ Jannki Ammal v. ^ordi/anricami (1916) 43 
I.A. 207. 209, 39 Mad. 634, 63d, 37 J.r. 
161, 016) A. PC. 117; V enkatnarayana v. 
fintf/amr/uil (1916) 42 T.A. 125, 128, 36 
Mad. 400, 410-411, 29 I.C. 298, ri5> A.PC, 
124 ; AiJiHl aVam?/a« v, Gaya Sitiyh 0918) 
4G r.A. 3y, 46 CaJ. 690, 44 I.C. 408 f'17) 
A.PC. 69 |r< nuricdation] ; Jayan yath 
V, 7>ihho (1909) 31 All. 63, i T.C. 818; 
.Vurt^I Kbihore v. Kanee Kam (1902) 29 
Cal. ; Annada v. fJour J/yftiin (1921) 
48 Cal. 5.36, 0.'. I.C. 27, ('21) A.C. 501: 
M'tnirkom v. liamalinyah (1906) 29 
120 ; ^futhuteem v. VyUiilinga (1909) 32 
Mad. 206, 3 I.C. 47« ; T'indiprolu v, 
Pindiprolu (1907) 30 486; JtamcJtan- 

(Ujr V. Katin (1908) 30 All. 497 ; Bhana v, 
G'm mart <191 8) 40 All. 384, 44 I.C. 629, (’18) 
A. A . 184 ; fJanrjafHii v. Jlari Ganesh (1921) 
45 Bom. 1167, 62 I.C. 680, (’21) A.B. 446 ; 
Dhoorjcli v. Dkoorjeli (1907) 30 JIad. 201 
[rouuuc-iation] ; Mueammal Bh/jywali v. 
JaydamilOZl) 0 Pat. L.J. 604, 621-622 62 
I.C. 933, (*21) A.P. 260 ; Bamatk Kuar v. 
, 7ndflr Bahadur Singh (1923) 60 1.A. 09, 45 


All. 179, 71 I.C. 629, f'22) A.PC. 403 (limi- 
tatJon] ; Anaada Mohan v. Goar Mohan 
(1923) 50 I.A. 239, 50 Cal. 929. 74 I.C 
409, (*23) A.PC. 189 nimitatlonl : Thakur 
Prasad v. J/u«a?nfna( JOipa Kuer (1931) 10 
Pat. 352, 365,134 I.C. 129, ('31) A P. 142 
^ee also Afa Yait v. Mahorned (1927) 5 
lUng. 14.J, 102 I.C. 690. (’27) A.R. 165. 

(а) Anant Xarayana, Singh v. Cana Singh 45 

I.A. 33, 45 Cal. 590, 44 I.C. 408 ; 
Mvsammat har Naraini Kunivar Sa^jan 
PaUingk & Ors. (1940) All. 719, (1940) 
Ear. 366, 190 I.C. 184, 67 I.A. 387, (’40) 
A.PC. 181. 

(б) Suaheela Sundaree v. Bi^ihiiuonda vlP33) 

fiO Cal. 630, 146 T.C. 641, ('33) A.C. 622 
{«) Bhagivanta v. SuA7a‘ (1900) 22 All. 33 (F.B.l ; 
Bahadur Singh v. Mohar Singh (1901) 
29 I^A. 1, 8-9, 24 All. 94 ; Ixila. .So/u'mmv. 
Kanhaiva Lai (1913) 40 I.A. 74, 35 All. 
227, 19 I.C. 291 ; Srimutty Manokratii 
Debt V. Haripuda (1914) IS C. W. li. 718, 
24 I.C. 311, (’14) A.PC. 161 ; Bainjosami v. 
Nachiappa, (1919) 46 I A. 72, 83 84, 42 
Mad. 523, 536, 50 I.C. 498, (’18) A.PC. 106. 



widow’s estate. 


167 


his property. On A’s death, ^”e property will revert or pass to F's next heir, B, if she 
is then living. On B'a death, F'b property will revert to his next heir C, if she is then 
living. On C’s death, f’s property will revert or pass to D, if he is then living. D, 
however, will take the property as fnll owner and on his death it will pass to his own 
heirs and not to f’s heirs. 

Spea succeesionis. — “ Under the Hindu law the death of the female owner opens the 
inheritance to the reversioners, and the one most nearly related at the time to the 
last full owner becomes entitled to possession. In her lifetime, however, the rever- 
sionary right is a mere possibility or spea auccessionia ” (d). “ A Hindu reversioner has 
no right or interest in prnesenli in the property which the female owner holds for her life. 
Until it vests in him on her death, should he survive her, he has nothing to assign or to 
relinquish or even to transmit, to his heirs (c). His right becomes concrete only on her 
demise ; until then it is mere spea aucceaaionia " (/). No ellect can bo given to a contract 
for sale of a reversion made by a reversioner before the reversion has fallen in even 
though the reversioner succeeds to the reversion on the widow’s death (p). Further, the 
interest of a reversioner being a mere spea aucceaaionia, he is not entitled to redeem a 
mortgage of the estate, executed by the widow’s husband, in the lifetime of the widow {h). 

Jata. — Among Jats who^have migrated to the district of Meerut from the Punjab 
there exists a custom by which reversioners irrespective of degree succeed equally to 
the last male owner, each branch of the family taking its share per stirpes (i). 

Burden of proof. — It is incumbent on a plaintiff seeking to succeed to property as 
a reversioner to establish affirmatively the particular relationship which he puts forward. 
He is also bound to satisfy the Court that to the best of his knowledge there are no nearer 
heirs (j). 

176. WidoTv’s estate. — ividow or other limited heir is not 
a tenant-for-life, but is owner of the property inherited by 
her, subject to certain restrictions on alienation, and subject 
to its devolving upon the next heir of the last full owner 
upon her death (k). The whole estate is for the time vested 
in her, and she represents it completely (1). As stated in a 
Privy Council case (m), “ her right is of the nature of a 
right of property ; her position is that of owner ; her powers 
in that character are, however, limited ; but .... so long as 
she is alive no one has any vested interest in the succession.” 

A widow under the Hindu law takes a special and qualified 
estate, and she has a limited power of disposition of her 


(d) V^/iiatanaraf/dPi v. Hublfam/fial (1916) 42 j 

I.A. 125, 128, 38 Itfad. 406, 410, 411, 29 
I.C. 298, (’15) A. PC. 124 ; Lakshmi v. 
Anant?iara'n%a (1937) Mad. 948 (F.B.i, 
171 I.C. 7, (’37) A.M. 099. 

(e) 5m. Shakuntala Devi v. Kaushalya Deii 

(1936) 17 Lah. 356, 102 I.C. 718, (’36) 
A.L. 124. 

(/) Amrit Narayan v, Qaya Singh (lOlS) 46 
I.A. 35, 30, 54 Cal. 500, 003, 44 I.C. 408, 
(•17) A. PC. 59. 

(ff) Jagannada v. Vrasada Dao (1916) 39 Mad. 

654, 29 I.C. 241, ('16) A.M. 579. 

(ft) Ohhotey Singh v. Surat Singh (1930) 5 Luck. 
691, 123 i.C. 211, ('30) A.O. 294. 


(i) Dhararn, Singh v. Uira (1922) 44 AU. 890, 05 

I.C. 828, (’22) A.A. 141. 

(j) Eanvi Raw v. Kuttiga (1917) 40 Mad. 654, 

34 I.C. 294, (’17) A.M. 872 ; Javitn v. 
Gendan Singh (1927) 49 All. 779, 102 I.C. 
167, (’27) A.A. 767 ; Ut. Barfo v. ^Tarain 
Prasad (1938) 13 Luck. 107, 107 I.C. 72, 
(’37) A. O. 243. 

(Jb) Bijoy Gopal v. Krishna (1907) 34 Cal. 329, 
34 I.A. 87, 91-92. 

(Z) Moniram v. Keri Koiilain (1880) 5 Cat. 
776, 789, 7 I.A. lli>, 154. 

(m) Janaki Ammal v. Narayanasami (1910) 43 
I.A. 207, 209, 39 Mad. 634, 637, 37 I.C. 
171, (‘16) A, PC. 117. 


Ss. 

175, 176 



168 


HINDU LAW. 


S. 176 husband’s property. The restrictions on her power of aliena- 
tion are inseparable fram her estate, and their existence does not 
depend on that of heirs capable of taking on her death. If, 
for want of heirs, the right to the property passes to the Crown, 
the Crown has the same power that an heir would have of 
protecting its interests by impeaching any unauthorized 
alienation by the avidow {«). See sec. 185A. 

The estate taken by a Hindu widow in property inherited 
by her from her husband is called “ Widow’s estate,” or 
“ Woman’s estate,” The estate taken by every other limited 
hieir is siniilar in its incidents to a widow’s estate. The incidents 
af a vddow’s estate are set forth in ss. 177 to 201. 

A widow or other limited heir does not take merely an estate for life, for, as will 
3e Been presently, she can in certain cases dispose of the whole estate inherited by her 
yhich she could not do if she were a mere lifo*tenant. What vests in her is not a mere 
ife-estate, but the whole estate. Further, she represents the estate completely, and 
it is for this reason that in certain cases a decree passed against her with reference to 
property inherited by her binds not only herself, but also the reversioners, though the 
reversioners were not parties to the suit. In other words the estate of a Hindu widow 
is an absolute one subject to certain restriciions. 

Incidents of widow's estate. — ^The expression “ stridhana ” predicates an a65oZw<e 
estate; the expression “widow^s estate** implies a limited estate. A female takes an 
absolute estate in her stridhana, but she takes a qualified estate in property inherited 
by her except in certain cases governed by the Bombay school [s, 173]. When she 
takes a qualified estate, it is said that she takes a icidom' estate. The following is a brief 
statement of the peculiar features of a widow's estate : — 

(1) The estate taken by a widow in property inherited by her from her husband may 
best be described by saying that she is the owner thereof, except that she cannot sell 
the corpus of the property or mortgage it, or make a gift of it, or grant leases thereof for 
a long term, or otherwise alienate it, unless it bo for legal necessity or for the benefit of 
the estate or with the consent of the next reversioners. Where an alienation is made 
by her for a legal necessity or with the consent of the next reversioners, it passes an 
absolute estate to the alienee to the same extent as an alienation made by a full owner 
[rs. 178-185]. 

A widow inheriting her hu8band*B property takes it and holds it as his legal repre- 
sentative. Rents accruing from it are to be considered as part of his estate and as such are 
liable to pay his debts and to be attached in execution of simple money decree obtained 
against him (o). 

(2) Subject to the above restrictions on alienation, she holds the property abso- 
lutely, and she completely represents it. She may, therefore, institute suits in respect 
of the property, and she may be sued in respect thereof, and decrees passed against her 
as representing the estate in respect of debts or other transactions binding on the estate, 
are binding not only on her, but on the reversioners, though the reversioners are not 
parties to the suit [s. 199]. 

(n) Collector oS MasuUpaiam^. Cavaty Vencala , (o) Phool Kunxear s. Kihhi Ram bl AW. 

(1861) 8 M.I.A. 529, 553. 1 714, 153 I. C. 805, (’36) A.A. 26l/ 



SAVINGS FROM INCOME. 


169 


(3) If she is dispossessed of any portion of the property by a third person, she 
can sue to recover it, hut if she fails to sue and allows the possession of such person to 
become adverse to her, the reversioners are not affected by such adverse possession 
for they succeed not as her heirs, but as her husband’s heirs, and they may, therefore, 
sue for possession within 12 years from the date of her death [s. 201]. 


Ss. 

176, 177 


Where a widow or other limited female owner sues for arrears of profits against a 
sharer and obtains a decree and executes it but on appeal the amount is reduced, the 
b ability to refund is personal to her and docs not attach to the estate so as to bind the 
reversioner after her death (p). 

(4) She can sell her life interest in the property or mortgage it or make a gift of it 'j 
to anyone she likes. She is entitled to the whole income of the property. Sho may i 
spend the income in any way she likes. She is not bound to pay her husband’s debts 
out of the income, nor is she bound to maintain the members of her husband’s family 
out of the income, or to perform their marriage ceremonies out of the income. She can 
throw the burden of all these charges on the corpus of the property, and sell or mortgage 
the same to meet those expenses, such expenses being regarded in law as legal 
necessities (g) [ss. 177 to 18)J. 

(5) The entire estate being vested in her, she is entitled to manage the same. But 
she must manage it as a prudent owner would do. She must not commit waste or do 
any act injurious to the revision [a. 198]. 


(6) The limitations imposed upon her estate are not imposed upon her for the 
benefit of reversioners. They are inseparable from her estate, so that even if there be 
no reversioners, she cannot alienate the corpus of the property except for a legal 
necessity. If she does alienate it without legal neeo.s.sity, then if there be no reversioners, 
the alienation may bo set aside by the Crown taking the property by escheat (r). 

(7) A widow cannot by any act or declaration of her own, while retaining posses- 
' -'sion of her husband’s estate, give her possession or estate a character difierent from 

that attaching to the possession or estate of a Hindu widow (a). 

The incidents of the estate taken by other limited heirs, such as the mother, father’s, 
mother, daughter (except in the Bombay school), are similar to those of the widow’s 
estate. 


177. Income and savings from income.— A widow or other 
limited heir is not a trustee for the reversioners {t). She has 
absolute power of disposal of the income of the property 
inherited by her. She is not bound to save the income. She 
may spend the whole income upon herself, or give it away 
as she likes during her life {n). But difficult questions arise 
when the income is accumulated either when the estate is in her 
possession or in the possession of others. Where the property 


{p) Kishan Lai v. Muhamimd Ishaq (li)33) 
All. 761 CF.B.), 170 I.C. 509, (’38) A.A. 
426. 

(q) Debi Dayal v. Bhan Pertap (1904) 31 Cftl. 433. 

(r) Collector of Mawlipatam v. Cavaly Vencata 

(1860) 8 M.I.A. 620; Kiindan v. Secretary 
of State (1920) 7 Lab. 543, 96 I.C. 865, 
•(’26) AX. 673. 

(a) Sham Loll v. Amarendro (1896) 23 Cai. 
460, 473; Kanni Ammaly. Ammahannu 
(1900) 23 Mad. 504. Sec also Brij Indar i 


V, Janki Koer (1877) 5 I.A. 1, 1 C.L.K. 
318 ; Kashi Prasad v. Inda Kujiwar (1908) 
30 AU. 490. 

(i) Firarafuv, Ve?ika(aratnam(J93Q) Mad. 226. 
(w) Surrydoss v. Sreemutly Uppoorttak (1856) 
6 M,I.A. 433 ; Brawanatk v. Khantomani 
(1870) 6 Beng. L. R. 747; Gro^/t v. 
Amirtamayi (1809) 4 Beng. L. It. 0. C. 
1, 40U1 ; Sarat Chandra y. Charusila 
(1928) 55 Cal. 918, 112 I.C, 508, (’28) A.C. 
794, 



170 


HINDU LAW. 


S. 177 


was not inherited hy her but a life estate is given to her by 
deed, no question of an intention to treat the accumulated 
income as an accretion to the main estate can arise in as much 
as there is a separation of the income from the date of the deed 
and she is not the representative of the last male owner [v). 
[ Vide s. 127 (4) ante ]. 

The law as to the right of a widow or other hmited heir 
to accumulations of the income of the estate of the last male 
holder may be considered under six heads, namely : — 

(1) Accumulations of income which accrued during 

the life of her husband or other male whom 

she succeeds. 

(2) Accumulations of income after his death and 

before dehvery of the estate*to her. 

(3) Accumulations of income of the estate made by 

herself personally. 

(4) Arrears of income and income held in suspense. 

(5) Accumulations of income where the income is 

given to her by her husband by deed or will. 

(6) Accretion to the estate in other cases. 

( 1 ) Accumulations which accrued during husband's life . — 
Accumulations which accrued during the husband’s life form 
part of the corpus of the estate. They are accretions to the 
estate, and the widow succeeds to both for a woman’s estate (%’)■ 


(2) Accumulations between death and delivery and 
afterwards realised by the limited owner . — Cases have arisen in 
which possession of the estate has been withheld from the widow, 
and the estate together with the accumulations of income is 
eventually handed over to her long after her husband’s death ; 
or in which the corpus of the estate is bequeathed by the 
husband to others, but there is an intestacy as to the income 
and the income which has accumulated owing to htigation or 
other causes is handed over to the widow long after the 
husband’s death. As these accumulations accrue after the 
husband’s death, the widow does not take them by succession. 
She takes them as she would have taken the income itself ha d she 


(c) MoMnee Mohan Basu v. Rash Biharee 
Ghosh (1937) 2 Cal. 97, 100 I. C. 619 
('37} A.C. 229. 

(uj) Chandrabvlee v. Brody (1808) 9 W. R. 684, 


585 ; Sreemutty Soorjeemon^.y Doasey v- 
Denobundoo (1862) 9 M.I.A. 123; SreetnuUy 
Soorjeemoney bossey v. Detiobvndoo (1867) 
6 M.I.A. 626. 



SAVINGS FBOM INCOME. 


171 


been let into possession at once, that is, as Stridhana (x) and S. 177 

she may spend them as she chooses. But the question still 
remains whether, if she keeps them distinct for some time she is 
entitled to deal with and dispose of the accumulations as she 
would have been entitled to do with the income if she has been 
let into possession at once and there had been no accumulations. 

This question should be determined by the intention of the 
widow to treat the accumulations as accretions to the estate or 
as her own absolute property. If she does nothing to indicate an 
intention to make the fund received, or the interest on it, 
part of her husband’s estate (which was in other hands), or to 
justify the inference that she wished it to revert to her hus- 
band’s heirs, the fund is her stridhana which she may dispose 
of by deed or will. But if she does indicate such intention 
or does any act t<?» justify such inference, she takes only 
a widow’s estate in the fund, and she cannot dispose of it 
except for legal necessity, and on her death it passes to her 
husband’s heirs. This- was the view taken by the Judicial 
Committee in Saodamini Dasi v. Administrator-General of 
Bengal (y), decided in 1892. 

T1i 6 leading case on the subject is Saodamini Dasi v. Adminisiraior-General of Bengal 
referred to above. In that case a Hindu by his will gave Rs. 1,00,000 to hi.s wife for 
her maintenance, and bequeathed the residue of his property to bis brother if no adop- 
tion as directed by him could be made to him within eight years from his death. The 
will made no provision in regard to the income of the residue during the eight years, 
and the widow became entitled to that income as on intestacy. The testator died in 
1856. No adoption w’as made within eight years, and the estate vested in the brother. 

In 1865, the widow claimed the accumulations of income for eight years as her absolute 
property. In 1866, an agreement was entered into between the widow and the 
brother under which he paid to her a lump sum of Rs. 2,89,000 in full satisfaction of her 
claim to accumulations. This sum she invested in Government promissory notes. In 
July, 1886, she executed a deed of settlement by which she transferred the securities to 
the j^dministrator-General of Bengal to bo held by him upon trust to pay the income 
thereof to her for her life and after her death to transfer the securities to her grandson. 

She died in September, 1886, and on her death the securities wore claimed by her husband's 
reversioners on the ground that she took only a widow’s interest in the accumula- 
tions and that she had therefore no power to dispose of them by will. The Judicial Com- 
mittee, affirming the decree of the Calcutta High Court, upheld the widow’s will. Dealing 
with the point, their Lordships said : “ The appellant’s counsel contended that the savings 
of a Hindis widow must be presumed to have been made for the benefit of her husband’s 
estate. Without examining the precise result of the decisions, it is sufficient to say that 
in this case there is no room for any siich presumption for the corpus of the estate never 
came to the widow, but was taken by Shamchum Mullick under the will, and the income 

(x) Sreemully Soorjeeononcy Bossey v. Dow- (y) (1892) 20 I.A. 12, 20 Cal. 433 [estate in 
bundoo (1862) 9 M, I. A. 123, 138-139 ; handa of executor — settlement by widow 

Jrsi Dut V, Hansbutti (1883) 10 Cal. 324, of accumulations upheld], 

335, 10 r.A. 150. 



172 


HINDU LAW. 


S. 177 


to which the widow succeeded was separated from it, and became and was dealt with 
as an entirely separate fund. To use the words of Mr. Justice Trevelyan in reference to 
Badamcomaree’s position ; ‘ There was no estate of her husband’s in her hands for her 
to augment.’ She did nothing to indicate an intention to make the fund received, or 
the interest on it part of her husband’s estate which was in other hands, or to justify the 
inference that she wished it to revert to her husband’s heirs.” 


(3) Accumv-lations made by the icidow personally . — The 
third case is where the accumulations are made by the widow 
herself personally, and either are invested by her or remain 
uninvested in her hands. A w'idow, as stated above, may 
spend her whole income either upon herself, or by giving it 
away as she likes during her life. She is .not bound to make 
any savings. But if she does make savings, the question 
arises whether she has the same power of disposal of the savings 
as she has of the income, or whether the savings are to be 
treated as accretions to the estate, that is,«as part of the corpus 
of the estate, so as to be subject to the same restraint on 
^ alienation as the corpus itself [s. 178]. The trend of decisions 
/ 'is that the case should be determined by the intention of the 
, i widow. If she does nothing to indicate an intention to make 
the savings part of her husband’s estate, or to justify the 
inference that she wished them to revert to her husband’s 
heirs, the savings are her stridhana {y^) which she may dispose 
of by deed or will. But if she indicates any such intention or 
does anything to justify any such inference, she takes only a 
widow’s estate in them, and she cannot dispose of them except 
for legal necessity, and on her death they will pass to her 
husband’s heirs. Thus if she invests the savings in the pur- 
chase of land or securities, and makes no endeavour or attempt 
for the purpose of distinguishing the original estate from the 
after-purchases, but deals with the after-purchases in the same 
manner as the original estate, it is an indication of intention 
on her part to treat the after-purchases as accretions to the 
original estate, and she cannot alienate them for any purpose 
which would not justify alienation of the original estate. But 
if there is no evidence of any dealing on her part which would 
show that she intended to treat the after-purchases as 
accretions to her husband’s estate, then the savings are her 
stridhana which she may dispose of by deed or will, and on 
her death intestate they will pass to her stridhana heirs (z). 


(yi) Pralhakar v. &anU>hai (1943) 2JaK 779 
208 I. C. 211, ('43) A. N.253. 

(z) 7m Dut V. Hansbutii (1888) 10 Cal. 324 
337, 10 I. A. 150 ; Skeoloehun v. Saheb 
Singh (1887) 14 Cal. 387, 893-394, 14 


I.A. 03; A’lrwflJa V. Beta Naraj/an (lQ2S) 
55 Cai. 2(9, 276, 104 I. C. 284, (’27) A 
C. 868 ; Dulhxn Parbati Kuer v. Baijnath 
Prasad (1936) 14 Pat. 618, 155 X.C. 213, 
(’36) A.A. 200. 



SAVINGS FROM INCOME. 




It has thus been held that where a widow inherits landed 
property in a village from her husband, and with the savings 
of the income of that property she purchases other lands in 
the same village, and long after the purchase she makes a gift 
both of the original estate and the after-purchases to one and the 
same person (being the daughter in that case), only reserving 
to herself a life-interest in part of them, the after-purchases 
constitute accretions to the estate which she has no power to 
alienate except for a purpose which would justify ahenation 
of the original estate (a). It has similarly been held that 
where the widow erects buildings on land belonging to the 
husband’s estate (b), or deposits money belonging to her 
husband’s estate with a banker upon the understanding that 
the interest at the end of every year shall be added to the 
principal and the amalgamated sum should be treated as a 
fresh deposit (c), the buildings and the accumulations of the 
interest must be deemed to be accretions to the estate, and 
descendible to the husband’s heirs. 


In Isri Dul v. HansbuUi {d) which was the first authoritative pronouncement on '• 
accumulations and savings, their Lordships of the Privy Council said : “But their Lord, 
ships do not treat as authorities on this question the numerous cases cited at the Bar, 
to show that a widow’s savings from her husband’s estate are not her stridhanam. If 
she has made no attempt to dispose of them in her lifetime, there is no dispute but 
that they foUow the estate from which they arose. The dispute arises when the widow, 
who might have spent the income as it accrued, has in fact saved it and afterwards attempts 
to alienate it. In this case the properties in question consists of shares of lands, in 
which the husband was a share holder to a larger extent. They were purchased within 
a short time after his death in 1857. No attempt to alienate them was made till 1873. 
The object of the alienation was not the need or the personal benefit of the widows, 
but a desire to change the succession, and to give the inheritance to the heirs of one 
of themselves in preference to their husband’s heirs. Neither with respect to this object, 
nor apparently in any other way, have the widows made any distinction between the 
original estate and the after purchases parts of both are conveyed to Dyji immediately, 
and parts of both are retained by the widows for life. These are circumstances which, 
in their Lordships’ opinion, clearly establish accretion to the original estate, and make 
the after purchases inalienable by the widows for any purpose which would not justify 
alienation of that original estate.” This ease was followed by the same tribunal in Skeo 
Lochun Singh v. Saheb Singh (e). In the judgment their Lordships said : “ Whore 

a widow comes into possession of the property of the husband, and receives the income 
and does not spend it, but invests it in the purchase of other property, their Lordshipsi 
think that, prima facie, it is the intention of the widow to keep the estate of the husband j 
as an entire estate, and that the property purchased would, prima facie, be intended,' 


(a) (1883) 10 Cal. 324, 10 I, A. 150, supra; | 

(1887) U Cal. 387, 14 I, A. 63, supra. | 

(b) Venfcaia V. Swrenani (1908) 31 Mad. 321, | 

(c) iSarayan v. Suppiah (1920) 43 Mad. 629, I 


58 I.C. 639, (-20) A. M. 9.S3. 

(i) (1883) 10 Cal. 324, 337, 10 I A, 150. 
(t) (1887) 14 Cal. 387, 393, 14 I A. 63,66. 


S.177 



174 


HINDU LAW. 


S.177 


to be accretions to that estate. There may bo, no doubt, circumstances which would 
’ shew that the widow had no such intention, that she intended to appropriate the Bakings 
in another way." 

In Nabalishore v. Vpendrakishore (/), the Judicial Committee said ; “ Now there 
can, their Lordships think, bo no doubt that whatever stridhana she possessed was due 
to the accumulated savings from the income of the property which she received from 
her husband’s estate, and though it is true that when that property had been received 
it would be possible for her so to deal with it that it would remain her own, yet it must 
be traced and shown to have been so dealt with, and in this case there is no sufScient 
evidence of this having been done." 


On the other hand, if she advances the savings made by 
her on a mortgage of land and subsequently assigns the mortgage 
for value (g), or purchases land with the savings and not very 
long after the purchase mortgages it as her own and afterwards 
makes a gift of it {h), or purchases land with the savings and 
soon after the purchase makes a gift of it (i). the subsequent 
acquisitions camiot be treated as accretions to the original 
estate, her conduct in all these cases being consistent only with 
an intention to treat them as her own absolute property. 

In Akhanna v. Venkayya (j), the High Court of Madras observed with reference 
to the dictum in Sheo Lochen Singh v. Saheb Singh above quoted. “ This was only 
a dictum which must bo understood with reference to the facts and circumstances of 
t hat case which it was held indicated that it was the intention of the widows to keep 
the estate entire, and that the same should descend in one line of succession ’’ and fur. 
ther proceeded as foUow.s ; — 

“ The acquirer of property presumably intends to retain dominion over it, and in 
the case of a Hindu widow the presumption is none the less so when the fund with which 
the property is acquired is one, which though derived from her husband’s property, 

was at her absolute disposal Her absolute power of disposition over the income 

derived from [her] limited estate being now fully recognized, it is only reasonable that, 
in the absence of an indication of her intention to the contrary, she must be presumed 
to letain the same control over the investment of such income. The mere fact that 
properties thus acquired by her are managed and enjoyed by her without any distinetson, 
along with properties. In a case where the widow purchased a house and within less 
than 4 months sold the property it was held by the Allahabad High Court that it is for 
the person who alleges that sho meant to keep the property as her Stridhanasto prove 
that it is so [k). It is submitted that this decision is inconsistent with the later decisions 
of the Privy CounciL 


Where the wido’w lends part of her savings on mortgage to 
the next reversioner, and afterwards obtains a decree against 
him ior the^ amount of the loan and takes proceedings in execu- 
tion, hut dies pending execution, the person entitled to proceed 
with the exeention is her stridhana heir, her conduct manifest- 


{{) (lOZS) 4Z Mall, L. J. 253, 74 I. C. 612, ('23) 
A.PC. 563. ' 

(g) Akhanna v. Venkayya (1902) 25 ilad. 351. 
(li) Wahid AH v. Tori Hama (1013) 36 All. B51 
21 1.C. 91. 


I (!) £es),av V, Maruti (1922) 46 Bom. 37, 02 
I.C. 954, ('22)A.B. 144. 
j U) (1902) 25 Mild. 351. 

I (i) Bhagvian Vat v. Bitlam (1045) All. 148. 



SAVINGS FROM INCOME. 


175 


ing a clear intention to treat the decretal amount representing 
the savings as her own absolute jiroperty (1). A. purchase of 
property by a widow out of the savings of the income in the 
name of another person, affords an indication of an intention 
to treat the property as her own (m). Where there is nothing 
to indicate the intention of a limited owner about the 
immovable properties acquired by her out of the savings 
of the property of the last man holder the presumption is that 
she intended to keep them at her absolute disposal (ml). 

When a woman’s stridhana was inherited by her two minor 
daughters but was managed for them by their guardians who 
purchased some additional property out of its income and one 
of the daughters died before obtaining possession of the estate, 
her share of the, property purchased was held to belong to her 
absolutely as stridhana and descended to her heir and not to 
the other daughter (n). 

(4) Income held in suspense or unrealized by the limited 
heir. — A widow or other limited heir may not have recovered 
the rents of the estate inherited by her, or she may have obtained 
decrees for arrears of rent and may not have realised them, or 
she may have recovered the arrears of rent and realised the 
decrees but may not have invested the amount. In cases such 
as these the question arises whether on her death the arrears 
of income or the decrees held by her or the income held in 
suspense constitute her stridhana or whether they constitute 
“ savings ” or “ accumulations”. Dealing with this question, 
the High Court of Bengal in a case decided in 1876 said: 
“ But what are accumulations in the view of these cases ? 
Not surely the accidental balances of one or two years of the 
widow’s income, but a fund distinct and tangible. There is 
nothing whatever in this case to indicate that any such fund 
ever had been formed or had existed” (o). In another case, 
the High Court of Bombay said “ In the present case the cash 
balance in question does not amount to more than halt' the 
yearly payment and had not been separated. so as to form a 
distinct fund (p). In Venhatadri v. Parthasaradhi (q) the Rani 


(l) Sila Ham v. Dulam 41 All. 350, 50 

I. C. 372 (’19) A.A 338. 

(m) Nirwala v. Deva Narayan (1928) 55 Cal. 

269, 275, 104 I C. 284, (’27) A.C. 868. 
(ml) Prabhakar v. Sarubhai (1943) Nag. 779, 
20S I. C. 211, ('43) A. N. 253. 

(n) Kailasanaih Mudaliar v. Vadit'.anni (1935) 


58 Mad. 488, (’35) A.M. 740. 

(o) Sreemuliy Pudtlo v. Picaika A'uth Bistcas 

(1876) 25 W.H. 335, 341. 

(p) Riiett-Carnac v. Jivibai (1886) 10 Bom. 

478. 

(q) 48 Mad. 312, 52 I.A. 214, ('25) A.P.C. 105^ 



176 


HINDU LAW. 


S. 177 of Mediix who became entitled to the estate, on the death of her 
son and its income till her death filed a suit to recover the estate. 
Pending the disposal of the suit the estate was in the hands of a 
receiver appointed by the Court. Before the suit was disposed 
of she died leaving a Willbequeatlnng the income of the estate. 
The Judicial Committee observed “ that income or any part 
of it she could while she remained entitled to it, have added as 
an accretion to the Medur estate if she had wished to do so. 
There is no evidence to suggest that she had ever added any 
part of that income as an accretion to the Medur estate. She 
was consequently entitled to dispose of it by will or otherudse. ’ 
In Balasubrahmania v. Subbayya (r) the estate was under 
the court of wards who were in possession of the savings of the 
income. The Piani could not make any attempt to dispose of 
it during her life time, but left a will bequeathing the accumu- 
lations. Their Lordsliips observed “ The High Court held that 
the savmgs were the personal property of the Rani and would 
pass under her Avill. Their Lordships see no reason to differ 
from the High Court’s findings. Follovdng the second of the 
sentences in Isri Dutt v. Hunsbutti cited above, it has been held 
in Calcutta (s) that if the widow does not dispose of in her 
lifetime the arrears of income or the decrees held by her or the 
income held in suspense, she cannot dispose of them by her 
will and they pass on her death to her husband’s heirs. But 
the decision in Venhitadri v. Partliasaradlii was not referred 
to by PAGE, J. and in a recent Calcutta decision (i) it was 
observed “ He held her MTU to be ineffective. It would, how- 
ever, be difficult to agree with all his reasonings on the later 
point”. But, when there is no will and the income is unrealised 
(e.ff., when due under decrees not yet executed) it is held in 
Calcutta and in Oudh (u) that the right to the income will 
not pass to the Stridhana heirs of the limited owner. 

(5) Accumidations of income granted by husband by deed 
or will. — Where by a deed or wdll the husband grants the 
income of his property to his wife for her life, and the corpus 
is given to others, the savings from such income and the 
property pmchased out of such savings are her stridhana, and 
they pass to her stridhana heirs. They are not accretions to 

(t) (1938) Ml. 051, 05 I.A. 93, (’38) A.PC. S-t. I li Cal. 115, 187 l.C. 1U8, 07 I. A, 129, 

(«) Sarat Chandra v. Charusila {1928) 60 Cal. I A. PC. 45. 

918, 112 I.C. 508, ('28) A.C. 794. {ii) Sar7iam v. liaja BuheiihwaT (1930) 5 Luck. 

(0 Surendranath Basuv, liadha Rani p€bi{\9lO) I 608, 125 I.C. 161, (*31) A.O. 60. 



SAVINGS FROM INCOME. 


177 


the estate for the simple reason that the corpus of the estate 
is in other hands {v). The widow takes the income not as a 
widow, but as a taker of a life estate under the settlement or 
will {w). Similarly, savings from maintenance allowance 
directed to be paid to a widow under a decree out of 
the husband’s estate and property purchased out of such 
savings are her stridhana, and they pass to her stridhana 
heirs (x). 

{6) Enlargement of estate inherited by a widow . — The 
estate, inherited by a widow from her husband may be enlarged 
otherwise than by savings from the income. Thus it may be 
enlarged by action of Government (y), or by compromise with 
the superior owner (z), or otherwise {a). In such cases the 
enlarged estate i.^ stiU a widow’s estate. The enlargement is 
no more than an accretion to her husband’s estate ; it does not 
change the character of the estate so as to convert the widow’s 
estate into stridhana. 


It has been held in the undermentioned cases that a female heir derives no stronger 
title from the fact that the Inain Commissioner has enfranchised in her name property 
inherited from a male, and has given a new title deed in her name. In Venkata v. 
V eerabhadrayya (6), the Judicial Committee held that when karnam service lands have 
been enfranchised, a quit rent being imposed in lieu of the service, and an inara title 
deed is granted comprising the lands to the holder of the office, his representatives and 
assigns, the lands are his separate property, and are not subject to any claim for parti- 
tion by other members of the family. Following the principle of this decision, the High 
Court of Madias has recently held that where a similar enfranchisement takes place 
in favour of a widow of kamam service lands and a similar title is given to her, she takes 
an absolute interest in the lands (c). When the widow, at her husband’s ivish, rounded 
off the property by acquiring another portion and treated both as one, it was held that 
a case of accretion had been established and that she could not alienate the acquired 
property as if it were her own (d). 


178. Limited power of disposal of immoveable property. — 
To uphold an alienation, by a wddow or other limited heir, 


(v) Krishna v. Bliaiya llagendru (19-7) 

2 Luck. 43, 82-89, 104 I. C, 15, (’27) 
A.O. 240 [legacy] ; Bhugbutti Das v. 
Bholanath (1875) 2 I.A. 256, 25 W, U. 
163. 

• (u») Isri Did v. JJansbulli (1883) 10 Cal. 324» 
336, 10 I.A. 180. 

(x) Subramanian v. Arunachelam (1905) 28 

Mad 1. 

(y) Vangalu v. Vangala (1906) 28 Mad. 13 ; 

Kas?ii Prasad v. Iiida Eumvar (1008) 30 
All. 400 ; Suhbaroya Aiyasu'ami (1909) 
32 Mad. 80, 1 I.C. 749. 


iz) Rum Shankar v. Lai Bahadur (1920) I 
Luck. 98, 92 I.C. 637, ('26) A.O. 277. 

(o) yabakishore v. Upendra Kishore (1923) 37 
Cal. L.J. 319, 74 I. C. 612, (’23) A. C. 
663 [purchase by -widow of rights of 
teoaats in occupation of her Iiusband's 
estate]. 

(b) (1921) 48 I. A. 244, 44 Mad. C43, 61 I. C 

667. (*22) A. PC. 96. 

(c) Palaniyandi v. Velayudam (1029) 52 Mad. 

0, 112 I. C, 320, (•2E>) A.M. 93. 

(d) Bharosa Shukul \. Manbasi Kuer (1932) 54 

AU, 1014, 143 I. C. 259, (’32) A. A. 690 • 


Ss. 

177, 178 



178 


HINDU LAW. 


Ss. of tte corpus of immoveable property inherited by her, it 
178, 179 should be shown (e) — 

(1) that there was legal necessity (/) (ss. 181-182) ; or 

(2) that the ahenee, after reasonable inquiry as to the 
necessity acted honestly in the belief that the 
necessity existed (ss. 181-182) ; or 

(3) that there was such consent of the next reversioners 
to the alienation as would raise a presumption 
that the transaction was a proper one (s. 183) ; or 

(4) that it was a surrender by her of her whole interest 
in the whole estate in favour of the nearest rever- 
sioner or reversioners at the time of alienation 
(s. 197). 

Where any one of the first three positictis is established, 
the alienation may be of the whole or any part of the estate ; 
but where the fourth alone is proved then the alienation must 
be of the whole estate. 

A widow or other limited heir has no power to dispose 
of the corpus of immoveable property inherited by her except 
in the four cases mentioned above. 

A widow may alienate her husband’s property to pay 
a debt inciured by her for legal necessity though that debt is 
barred at the time of alienation {y). 


179. Limited power of disposal of moveable property.— 
In territories other than the Bombay Presidency, a widow 
or other limited heir has no greater power of disposal over 
moveable property inherited by her than over immoveable 
property, and she cannot dispose of it by deed or will (A). The 
same is the law in the Bombay Presidency in cases governed 
by the Mitakshara {i). But in cases governed by the 
Mayukha, it has been held that she can dispose of moveable 
! property inherited by her by act inter vivos, that is, by sale, 

1 gift, or otherwise (j), but not by will, and what remains of the 
property at her death descends to the next heirs of the last full 


(e) Lebi Prasad v. Golap Bhayalt (1913) 40 Cal. 
721, 752, 753, 19 I.C. 273 [F.Ji.] ; Banga- 
swami v. Nachiappa (1010) 42 Mad. 523, 
46 I.A. 72, 50 I.C. 408, (’18) A. PC. 106. 
(/) Fateh Singh Raghubir Svhai (1038) 
All. 004 (F.B.) (relates to usufnirtuary 
mortgage rights Inherited by widow). 

(g) Daroga Rai v. Basdeo Jlfahto (1037) 16 Pat, 
45, 166 I.C. 555, ('27) A.P. 40. 


(h) Bhugwandeeji v. Myna Baee (1867) 11 M.I. 

A. 487 (Benares) ; Durga Nath v. Chinta 
Moni (1004) 31 Cal. 214 (Bengal) ; Buchi 
V. Jagapathi (1885) 8 Mad. 304 (Madras). 

(i) Pandharinath v. Goitnd (1908) 32 Bom. 69. 

(i) Bechar v. Bai Lakshmi (1863) 1 Bom. H. 
C. 66 ; Bkagirthibai v. Khanujirav (1887) 
11 Bom. 285, 297. 



ALIENATION BY WIDOW, 


179 


owner {k). So also moveable property obtained by a Hindu 
widow in a partition with ber son stands on the same footing 
as moveables acquired by inheritance and therefore, may be 
disposed of by her during her life time unrestricted by any 
rights of other persons fi). See, however, sec. 2 and sec. 3 (3) of 
the Hindu Women’s Rights to Property Act, 1937. The result 
is somewhat startling. 


180. No power to dispose of inherited property by will. — 
widow or other limited heir cannot in any case dispose of 
by will property inherited by her or any portion thereof, 
whether the property be moveable or immoveable {m). 

181. Alienations by widow. — A widow or other hmited heir 
has no power to alienate the estate inherited by her from the 
deceased owner except for the following purposes, namely ; — ■ 

(I) Religious or charitable purposes [ s. 181 A]. 

(II) Other purposes amounting to legal necessity 
[s. 181B]. 

For purposes of the first class she has a larger power of 
disposition than for purposes of the second class (n). 

181A. Alienation by widow for religious or charitable 
purposes. — (2) Extent of 2 yower of alienation , — A widow or 
other female heir may alienate the estate for certain religious 
or charitable purposes. These purposes may be divided into 
two classes, namely : — 

(a) The performance of the obsequial ceremonies of the 

deceased owner mentioned in cl. (i) below, and 
the payment of his debts (o) mentioned in 
cl. (iv) below. 

(b) The performance of religious ceremonies of persons 

other than the deceased owner mentioned in cl. (ii) 
below, and rehgious or charitable acts which 
are supposed to conduce to the spiritual welfare 
of the deceased owner mentioned in cl. (iii) below. 


(fc) Chamanlal v. Doshi Ganesh (1904) 28 
Horn. 453 ; Gadadliur v. Chandrabhayabai 
(1893) 17 Bom, 690 ; Marilal v. Pranvaiab' 
das (1892) 10 Bom. 229. 

(1) Chamanlal v. Bni Parvati (1934) 58 Bom. 

246, 150 I.C. 854, (’34) A.B. 151. 
itn) 2'hakoor Deyhee v. Pai Baluk Pam (1866) 
11 Ml. A. 139; Gadndhar v. Chandra^ 
bhagabai 17 Boni. 090 ; Dnrga Naih 

V Chintamani (1903) 31 Cal. 214 ; Nara 
simha v. Venkaiadri (1884) 8 Mad, 200 ; 
Sarat Chandra v. Charusila (1928) 55 Cal. 


918, 112 X.C, 508, ('28) A.C. 704; 
2’trath Ram v, Kahan Deri (1920)1 
Lah. 588, 60 I.C. 101, (’21) A.L. 149; 
Jagdeo Singh v. Mussammat Paja Kuer 
(1927) 6 Pat. 788, 103 I.C. 482, ('27) 
A.P. 202 ; (iadadhur v. Chandrabkagabai 
(1892) 17 Bom. 690. 

{n) CoUectoT of MasuHpatnm v. Caiahj T’^n<r<j/a 
(18C1) 8 M.I.A. 529, 551. 

(o) A^hutosh v. Chidam (1930) 57 Cal. 904, 
126 I.C. 263, (’30) A.C. 351. 


Ss. 

179-181A 



180 


HINDU LAW. 


S. 181A 


The first class relates to acts which are essential and 
obligatory. The second class relates to acts which although 
not indispensable or obligatory are still pious purposes which 
conduce to the benefit of the soul of the deceased. With 
reference to the first class of acts, the powers of the Hindu 
female who holds the estate are wider than in respect of the 
acts which are simply pious. As regards acts of the first class, 
if the income of the estate or the estate itself is not sufficient to 
cover the expenses, she is entitled to sell the whole of it. As 
regards the second class, she can alienate a small portion only 
of the estate for the pious or charitable purpose she may 
have in view (p) ; the expense that is allowable as regards 
this class of acts must be limited by a due regard to the entire 
bulk of the estate, and may even be totally disallowed where 
it is not warranted by the circumstances ofithe family. 

To justify an alienation for a religious or charitable 
purpose, it is not necessary to show any “ benefit to the estate,” 
or to prove any “ pressure on the estate,” such as is necessary 
in the case of an alienation for other purposes {q) [s. 181B (1) ]. 

(2) W/iat are religious or charitable purposes. — Having 
stated the extent of the power of disposition of a Hindu 
widow or other limited heir for religious or charitable acts, we 
proceed to consider the precise nature of these acts. The 
rehgious or charitable acts for which an alienation may be 
made are as follows : — 

(i) Performance of the funeral (r) and sraddha 
ceremonies (s) of the deceased owner. These 
acts are es.sential and obligatory. 

Thug a widow may alienate property inherited by her from her husband for the 
performance of the funeral and sraddha ceremonies of the husband. Similarly, a daughter 
succeeding as heir to hQV father may alienate property inherited by her for the performance 
of similar ceremonies of the father (^). So debts incurred by a daughter for the 
Sraddha ceremony of her father, while the widow is alive, are on the same footing as 
debts incurred by the widow. Such debts bind the daughter when she succeeds as 
reversioner (v). 

But this principle applies only to a widow or other limited owner or a donee from 
her in lawful possession. Where the property has devolved from the last owner upon 


ip) Sardar Singh v, Kunj Behan Lai (1922) 44 
All. 603, 511, 49 I.A. 383, 391, 69 I.C. 
36, (’22) A.PC. 261. 

(ff) Collector of Masulipatam v. Cavaly Vencata 
(1861) 8 M.I.A. 629, 551 ; Ham Surat v. 
Hiianandan (1931) 10 Pat. 474, 134 I.C. 
137, (’31) A.P. 330. 

(r) Ilatanchand v. Javherehand (1898) 22 £cm. 


818 ; LakHhminarayanQ, v. Dasu (1888) 
11 Mad. 286. 

(«) Srx^mhan v, Brijbehary (1909) 36 Cal. 753, 
2 I. C. 152. 

(t) Baj Chnnder v. Sheeshoo (1865) 7 W.B.. 146. 

(u) Daroga Rai v. Basdeo Makto (1937) 16 Pat. 

45, 166 I.C. 555, (’37) A.P. 40. 



ALIENATION BY WIDOW. 


181 


his mother and after her death a parson without lawful title enters into possession of 
the property, and incurs expenses for the funeral ceremonies of the mother, such person 
cannot claim a charge on the estate for the expenses so incurred against the reversioner (e). 

(n) Performaace of religious ceremonies of persons 
whose ceremonies the deceased owner was bound 
to perform, as for instance, the sraMha of the 
husband’s mother {w), and where a daughter in- 
herits to her father, the performance of her 
mother’s sraddha (x). These ceremonies are not 
essential or obligatory. 

(ui) Religious or charitable acts which conduce to the 
spuitual welfare of her husband (y). These acts 
are not essential or obligatory. 

Tu/o seis of religious acU . — In Sardar Singh v. Kunj Behari Lai {z) their Lordships, 
after reviewing the Aiaea on the subject, said : — 

“ There can be no doubt upon a review of the Hindu law, taken in conjunction with 
the decided cases, that the Hindu system recognizes two sets of religious acts. One is in 
connection with the actual obsequies of the deceased, and the periodical performance 
of the obsequial rites proscribed in the Hindu religious law, which are considered as 
essential for the salvation of the soul of the deceased. The other relates to acts which 
although not essential or obligatory, are still pious observances which conduce to the 
bliss of the deceased's soul. In the later cases this distinction runs clearly through the 
views of the learned judges. The confusion which has arisen in this case arises from 
mixing up the indispensable or obligatory duty with a pious purpose, which, although 
optional, is spiritually beneficial to the deceased. With reference to the first class of 
acts, the powers of the Hindu female who holds tho property are wider than in respect 
of the acts which are simply pious and if performed are meritorious so far as they con- 
duce to the spiritual benefit of the deceased. In one case, if the income of the property, 
or the property itself, is not sufi&cient to cover the expenses, she is entitled to seU the 
whole of it. In the other case she can alienate a small portion of the property for the 

pious or charitable purpose she may have in view In their Lordships’ 

opinion the Hindu law recognizes the validity of the dedication or alienation of a small 
fraction of the property by a Hindu female for tho continuous benefit of the soul of the 
deceased owner,” 

An alienation by a widow to pay off debts incurred by her for the Upanayana 
ceremony (investiture with the sacred thread) and marriage of her daughter’s son will be 
upheld provided the debts are reasonable accoiding to the ordinary notions of Hindus (a). 

The first set of religious acts referred to above relates to the performance of the 
ceremonies referred to in cl. (i) above, and the payment of debts referred to in cl. (iv) 
below (h). Both these are religious purposes which a widow is bound to carry out at any 


(y) Nandrani v. Kruhna Hahai &7 All. 

097, 156 I.C. 23, ('35) A. A. 608. 

(w) Chowdrg Jimmcjoj/ v. ihissonioyee (1868) 31 

Beng. L.U 418 ; iJatnsoomr v. Ickamotji 
(1882) 8 Cal. 36. 

(x) Sri Mohan v, Brij Behary (1908) 30 Cftl. 753. 

(y) CollccioT oj Masuhpatam v. Caoaly Vencata 

(1861) 8 M.I.A. 529, 551 ; iiaj LaJehee 
Debea v. Qokool (1866) 13 M.I.A. 

209 ; Sardar Singh v. Kuny Bshari lal 
(1922) 44 All. 503, 511, 49 I.A. 383, 391, 

T r* Oft f'00\ A un olHmrr rioiot 


41 All. 130, 48 I.C. 847, ('18) A.A. 40; 
Vuppuliiri Tattaya v. Garimilla (1910) 
34 Mad. 288, 6 I.C. 240 ; Khub JmI v. 
Aiodhya (1915) 43 Cal. 574, 31 I.C. 433, 
(•16) A 0. 792. 

(2) (1922) 44 All. 503, 511. 49 I.A. 383, 301, 69 
I.C. 36, (’22) A.rC. 261. 

(o) Vsnkotasubba Bao v. Ananda Boo (1934) 67 
Mad. 772, 155 I C. 79, (’34) A.M. 432. 

(6) Ashuioih V. Cftirfam (1930) 57 Cal. 904, 126 
T n oi;*? a r 


1. 181A 



182 


HINDU LAW. 


S. 181A 


e,Tpe«iSe to the estate as laid down in Sardar Shigh's case. These are absolute necessities. 
The second set of religious acts comprises the ceremonies referred to in cl. (ii) above, and 
religious or charitable acts which conduce to the spiritual welfare of the iiusband mention- 
ed in cl. (lii). For these purposes the widow may make a gift of a small portion only of 
the estate as laid down, in Sardar Singh's case and other cases cited below (c). An 
endowment by a widow for the upkeep of Thakurdwara out of all proportion to the estate, 
was held not to be binding on the reversioners though they raised no objection to the 
construction of the Thakurdwara (d). The gift may be of movable property, or it 
may be of immovable property. The circumstance that the widow has sufficient income 
to provide for the observances without an alienation of the estate is immaterial, for 
the income is her property (e). Almost all cases under this head relate to acts conducing 
to the spiritual welfare of the husband. The following are instances of such acts : — 

Pilgrimages for the spiritual benefit of her husband and in performance of hei 
duty to his soul, e.g.^ pilgrimage to Gaya for performing her husband’s sraddha (^), pilgri- 
mage to Pandharpur (^). but not pilgrimage to Benares (^) ; a gift to the temple ol 
Jagannath at Puri for bhog (food offerings) to the diety and for the maintenance of the 
priests there ‘‘ for the salvation of my husband and his family members and my own 
salvation” (i) ; a gift made by a daughter at the time of performing her father’s sraddha 
on the occasion of the Pushkaram, a peculiarly holy event among tlie Hindus (j) ; a gift 
for erecting and maintaining a temple for the benefit of the soul of the husband, though 
it may be also for the benefit of her soul {h) ; a gift for the excavation and maintenance of 
a tank to be attached to a temple founded by the husband [1 ) ; a gift for the construc- 
tion of a tank pursuant to her husband’s wishes (m) ; a gift to the Imsband’s purohit 
(priest) on the occasion of her visit to Gaya (?i) ; a gift by way of supJial sankalp to a 
priest of Gaya (o ) ; a gift to a family diety (p). 

Bub it is not competent to a Hindu widow to alienate any portion of her husband’s 
property for her sole spiritual benefit. Hence the following gifts have been held to be 
invalid : — 

A gift by a widow to a favoured idol made sixteen months after her husband’s death 
without any reference to him or his funeral ceremonies (y) ; a gift to the pujari 
(worshipper) of a temple established by her husband’s mother for which no provision 
was made by the deceased himself in his lifetime (r) ; a feast given by a widow on her 
return from pilgrimage (s) ; a gift for building a dharamshala about sixteen years after 
her husband’s death, there being nothing to show that the intention was to confer 


(r) Panacha}^! v. ^lanoJuirlal (1918) 42 Bom. 
136, 43 rc. 729, ('17) A.B. 155 [qift of 
foup-fifths of the e.state held Invalid) ; 
Rama v. Ranga (1885) 8 Mad. 552; 
Bhaslar v. Mahadeo (1809) 6 Bom. H.C. 

0. C, 1, 13 ; Ram Kawal v, Ra7n Kishore 
(1895) 22 Cal. 506 ; .Kim; Bihari Lai v. 
Laltu Singh (1019) 41 All. 130, 48 I.C. 
847, ('18) A. A. 40 ; Thakur Indraj Bux 
V. Thakur Sheo Naresh (1927) 2 Luck. 
713, 104 I.C. 670, ('27) A.O. 450; 
Thakur Prasad v, Musammot Vipn Kuer 
(1931) 10 Bat. 352, 134 I.C. 129, (’31) 
A.P. 442. 

<d) Mat. TuUha v. Lachhman (1943) 

IS Luck. 501, 204 I.C. 68, ('43) A.O. 109. 
(e) (1922) 44 Ail. 503, 40 I. A. 383, 69 I.C. 36 
(’22) A.rc. 261, infra. 

if) Muteeram v. Gopal (1873) 11 Bene. L.H. 

416 ; Bnrbari Lai v. Gobiml (1924) 46 All 
822, 80 I.C. 31, (’24) A.A. 902. 

ig) Ganpat v. TuUiram (1912) 36 Bom. 88. 12 

1. C. 271. 

(ft) Hari v Bajrand (1909) 13 C.W.N. 544 
547, lie. 434. 

(i) Sardar Singh v. Kunj Bihari Lai (1022) 44 


All. 503, 49 I.A. 383, 69 I.C. 36, (’22) A, 
PC. 261. 

(f) Talayya v. Ramaknshnamma (1911) 34 Mad. 
288, 6 I.C. 240. 

(t) Thakur Indraj Bux v. Thakur Sheo Naresh 
(1027) 2 Luck. 713, 104 I.C. 076, (’27) 
A.O. 450. 

(0 Rhuh Lai V, Ajodhya (1910) 43 Cal. 674, 
31 I C. 433, (’16) A G 792. 

(tn) ham Surat v. Jlilanandnn (1931) 10 Pat. 474, 
134 I.C. 137, (’31) A P. 330. 

(w) Gabindy Lalrftraiii (1921) 43 All, 515, 63 I.C. 
221, (’21) A.A. 109 ; Ishtvari v, Babunan- 
dan (1925) 47 All. .503, 571, 88 I.C. 193, 
(’25) A.A. 495 [qift to a family priest set 
aside as it was of a large proportion of tho 
estate). 

(o) Baldeo Prasad v Fateh Singh (1924) 46 All. 

533, 79 I.C. 654, (’24) A.A. 933. 

(p) ii/arffuitHoftan v. Rakhalchandra (1930) 57 

Cal. 570. 124 I.C. 327, (’30) A.C. 173. 

(7) Puran Utn v. Jai A'arain (1882) 4 All. 482, 
484. 

(r) Ram Kawal v. Ramkiehore (1805) 22 Cal. 

506. The property alienated was, more- 
over, about onc-thlrd of the whole. 

(s) Makhan Lai v. Gayan Singh (1011) 33 All. 

255, 0 I C. 199. 



ALIENATION BY WIDOW. 


183 


spiritual benefit on her deceased husband (t) ; a gift for the construction of a temple S. ISlAi 
and installation of idols for her own welfare and salvation iii the next world (a), and a 
dedication of property to the idols installed in such temple (c) ; a gift to her own Guru 
nine years after her husband’s death (m). 

(iv) Payment of debts of the deceased owner, even ' 
though barred by limitation whether during his 
lifetime or after his death (a:). Payment of these, 
debts is essential and obligatory. 

A widow or other limited female heir is not bound to pay the principal amount of 
the last male owner’s debts, for the income belongs wholly to her (y). She is only bound / 
to pay the interest on the same out of the surplus of her income. When an alienation 
is made to pay off the principal and interest of a debt of the last male owner, it is not 
for a binding purpose so far as the interest is concerned, when she could have paid it off 
from her income, but if the proportion of the interest to the whole of the principal amount 
of the debt is small (e.j., one-fifth) the whole alienation will be upheld [z). 

The payment of a husband’s debt by his widow who has inherited property from 
him falls within the first class of religious acts enunciated by the Privy Council in Sardar 
Singh v. Kunj Bihati Lai (a) [see note to cl. (iii) above], and is an essential duty on her ' 
part for which she may alienate the property inherited by her. The act being a reli- 
gious act of the first class, there is no restriction on her power of alienation and she may 
aell the whole estate for that purpose (6). She may pay even a debt barred by limitation, 
but she is not entitled to pay a time-barred debt which was repudiated by her husband (c). 

But where a Hindu widow mortgages property to pay off the time-barred debt of her 
husband, and later on executes another mortgage to pay off the claim under the prior 
one which had by that time become time-barred, the last mortgage is not binding on the* 
reversioner as it was executed only to pay off her time-barred debt (d). A daughter- 
in-law also is under a moral obligation to pay the time-barred debt of her father-in- 
law and she may alienate his property for the payment of such debts (e). But it has 
been held that a mother who has succeeded to her son's estate is not under any 
obligation to pay a time-barred debt of her husband^ though the estate to which she has 
succeeded originally belonged to her husband ; and alienation, therefore, of any part 
of the estate for the payment of such a debt is not binding on the reversion (/). Where 
a widow has paid her husband’s debts with her money in his lifefvne, the presumption 
is that the payment was voluntary ; she caimot therefore sell her husband’s property 
after his death to pay herself the amount (g). But a widow is not entitled to pay off 
her husband’s debts incurred by him when he was a minor, so as to bind the reversioners 
of his estate (^). 

(t) Shan Dei v. Birbhadra (1921) 43 All, 403, 62 166 I. C. 421, ('36) A. L. 658. 

I.C. 432, ('21) A. A. 178 ; Munshi Lai v. (|/) Ramasami v. Mangaikarasit (1895) 18 Mad. 

Shiv Devi (1923) 4 Lah. 336, 78 I,C. 260, 113, 119-120 ; Debi Dayal v. Bhan Periar) 

(*24) A.L. 137. (1904) 31 Cal. 433, 443. 

(u) Dayal Singhy. Musammal Jaisari (z) Jagannadham y. V ighneshwaradu (1932) 65 

Kuer (1918) Pat. 323, 48 I.C. 746, ('17) Mad. 216, 134 I.C. 810, (’32) A.M. 177. 

A.P. 4. (fl) (1922) 44 All, 503, 49 I.A. 383, 69 I.C. 36, 

(v) Thakur Pursad v. Musammani Dipa Kuer ('22) A.PC. 261. 

(1931) 10 Pat. 352, 134 I.C. 129, (’31) A.P. (6) (1930) 57 Cal. 904, 126 I.C. 263, (’30) A.C. 

442. 351, supra. 

(w) Ear Mitra v. Raghubar (1928) 3 Luck. 645, (c) Bhagtoal v. ATuToMi (1915) 39 Bom. 113, 27 

110 I.O. 618, (’28) A.O. 342. I.C. 346, (’14) A. B. 245. 

(*) Ashutosh V. Chidam (1930) 57 Cal. 904, 126 (d) Chandika Prasad v. Bhagavandas (1940) 15 

I.C. 263, (’30) A.C. 351 ; Bhala v. Parbhu * Lucknow, 167 I.C. 105. 

(1878) 2 Bom, 67 ; Chimnaji v. Dinkar (c) Bhau v. Gopala (1887) 11 Bom 325. 

(1887) 11 Bom. 320 , Kondappa v. Subba (/) Sheo Ram v. Sheo Raian (1921) 43 All 004, 

(1890) 13 Mad. 189; Udai Chunder y. 03 I.C. 279, (’21) A.A. 103. 

Ashutosh (1893) 21 Cal, 190; Saniu Ram (g) Bhaivam v. Himvwt (1911) 33 All. 342, 10 

V. Mst. Dodan Bai (1928) 9 Lah. 85, 103 I.C, 274 [P.C.], affirming Eimmat v. 

I.C. 706, ('27) A. L. 657; TulshiPrasad Bhawani (1908) 30 All. 352. 

V, Jtigmohanlal (1035) 67 All. 422, 152 (A) Bajrang Singh v. Gobindprasad (1936) 

I. C. 92, (’34) A. A. 1048 ; Mt. Malan 11 Luck. 11, 154 I. C. 841, (’86) A. 0. 

V. Paramaimadas (1930) 17 Lah. 688, 373, 



184 


HINDU LAW. 


Ss. (5) Widow not in 'possess ion. — -A widow or other female 

ilA, 181B heir who is not in possession of the estate, but is entitled to 
maintenance only, cannot burden the estate with any expense 
for religious or charitable purposes (i). The Court should in 
fixing the maintenance take into consideration the necessary 
religious expenses which she has to undergo (j), and if that has 
not been done, she may apply in the suit in which the decree 
for maintenance was passed for an increase of maintenance so 
as to provide for those expenses. 

A and B are undivided brothers. A dies leaving a widow B. Then B dies leaving 
a son D. After B's death, B sues I) for maintenance, and a decree for maintenance is 
passed. The decree does not take into account the religious expenses E may have to 
undergo for the spiritual welfare of her husband {V's paternal uncle), Aftenvards B 
goes on a pilgrimage for the spiritual M^elfare of her husband. She then sues D for these 
expenses. She is not entitled to them. Her only remedy is to apply to the Coui-t which 
passed the decree for maintenance for an increase of maintenance so as to provide for 
those and other religious expenses. 

181B. Alienation by widow for legal necessity. — (i) Extent 
of power of alienation. — Having dealt with the power of a widow 
to alienate the estate for religious or charitable purposes, we 
proceed to consider the nature and extent of her power of dis- 
position for other purposes. The power of a widow or other 
limited heir to alienate the estate inherited by her /or purposes 
other than religious or charitable is analogous to that of a mana- 
ger of an infant’s estate as defined by the Judicial Committee 
in Hunooman Persavd v. MussamatBabooee (k) [sec. 242, note (1 )]. 
That power is a limited and qualified one ; it can only be 
exercised rightly “ in a case of need ov for the benefit of the estate ” 
[ sub-sec. (3) ]. But where the ahenation is one that a prudent 
owner would make in order to benefit the estate, a bona fide 
ahenee is not affected by the previous mismanagement of the 
estate. “ The actual pressure on the estate, the danger to 
he averted, or the benefit to be conferred upon it, in the 
particular instance, is the thing to be regarded ” [h). If the 
ahenation is for purposes of legal necessity or for the benefit of 
the estate, it binds not only her interest in the estate, but the 
whole body of reversioners {1). 

“ The touchstone of the authority is necessity ” (m). The 
word “ necessity,” when used in this connection, has a some- 


(i) Itamabai v. Dallairaya (11)31) 33 l3oin. L. U. 

1244, 135 I. C. 401, (’31) A. 497. 

(j) Baisjii V. Rup Singh (1890) 12 All. 558, 

Deii Persad v. Gunvanii Knar (1895) 22 
Cal. 410. 

(J’) (1856) 6 II.I.A. 393 ; Kame^war Pernhad v. 


Run Ruhndur (1881) 0 Cal. 843, 8 I.A. 8. 

(l) Collector of Muiulxpatamy. Cavaly Vencaia 

(1361) 8 M.I.A. 529, 550-551 ; S/iamSunder 
V. Acchhan Kunwar (1898) 25 I.A. 183, 
139, 192, 21 All. 71, 80, 83. 

(m) Sham Sunder v. Acchhan Kunivar (1898) 25 

I.A. 183, 102, 21 All. 71, 83. 



ALIENATION BY WIDOW, 


185 


what special, almost technical, meaning. It does not mean 
actual compulsion, but the kind of pressure which the law 
recognizes as serious and sufficient (m). The receipt even 
of full value for property sold by her, where there is no 
pressure on the estate, will not justify the sale ; otherwise every 
transaction with a limited heir for full value would be 
valid (o). 

(2) Purposes of legal necessity . — The following purposes 
have been held to amount to legal necessity for which an 
alienation may be made : — 

{%) Costs of taking out probate, or letters of adminis- 
tration, or a succession certificate in respect of the 
estate of the deceased owner {p). 

{ii) Payment of arrears of Government revenue and of 
decrees for rent accrued due after the death of 
the deceased ovmer, provided she had no funds 
when she mortgaged or sold the property to pay 
the revenue or the decrees and the mortgage 
or sale was absolutely necessary in order to 
discharge the debt, which if not discharged 
would have resulted in a forcible sale of the 
property (q). If there is an actual existing neces- 
sity, the circumstances that the necessity was 
brought about by the mismanagement of the widow 
does not vitiate the mortgage or sale, unless it is 
shown that the mortgagee or purchaser himself 
contributed to the mismanagement [ s. 182]. 

Arrears of Government revenue and of rent due by the deceased owner himself 
constitute his debtSf and they fall under sec. 181 A (2) (iv) and they are payable out of 
his estate. But arrears of revenue and rent accrued due in respect'* of her husband’s 
property after his death must be paid out of the gross income. If this were not sc 
it would be open to a widow to appropriate the entire profits of the property for her own 
use and benefit without paying revenue or rent whicJi is actually charged on the profits 
accruing from the property. A hlindu widow is not entitled, while she is in possession 
of the property inherited by her, to appropriate the gross profits of the property and to 
throw the burden of the payment of legitimate charges like those of revenue and rent 
upon the reversioners (r). 


(n) Ramsuran Prasad v. Shyam Kumari (1922) 

40 I. A. 342, 346, 1 Pat. 741, 745, 69 I.C. 
71, (*22) A.PC. 356. 

(o) Raraneslnoar v. Chandi Pratad (1916) 43 

Cal. 417 [P.C.] 36 I. C. 499, ('15) A C. 57, 
alTirming eamo case (19U) 38 Cal. 721, 
750, 12 I.C. 931 ; Nabakishore v. Upendra 
Kishore (1923) 37 Cal. L.J. 319, 74 I.C. 
012, (’23) A.C. 563. 

(p) Srimohan v. Brijbehary (19C9) 30 Cal. 753, 

2 I. C. 153. 

(g) Jagannath v. Gut Charan (1929) 4 Luck. 


279, 114 I.C. 783, (29)A.O. 422 ; Rames- 
toar V. Proiabath (1914) 19 C.W.N. 313, 25 
I.C, 84 (*15) AC 141; Srimohan v. ifrti- 
behary (1009) 36 Cal. 7.53, 2 I C 153'; 
Ganesh Lul v Khetra Mohan (1926) 53 I A. 
134, 5 Pat. 585, 95 I C. 830, (’26) A.PC. 
56 ; Jiban v. Hrojo Lai (1903) 30 Cal. 550, 
30 I.A, 81 ; Ghonshyam v Bodxya Lai 
(1902) 24 AH 5+7 ; Lakshmnu v. Radhn 
Bai (1887) 11 Bom. 609. 

(r) Jagannath v. Gur Charan (1929) 4 Luck. 279, 
282-283, 114 I.C. 783, (’29) A.O. 422. 


S. 181B 



186 


HINDU LAW. 


S. 181B 


Payment of arrears of rent due under a lease taken by a widow for her own personal 
benefit, or of rent in respect of an exproprietary tenancy arising from the sale of her 
husband’s property, has been held not to be for legal necessity (5). 

Hii) Maintenance of herself (i), and of persons whom the 
deceased owner was bound to maintain, such 
as his mother, paternal grandmother, unmarried 
daughters, and the like (u), or paying off debts 
incurred for family expenses (u). 

(iv) Marriages of relations of the deceased owner, such 
as his daughter, son’s daughter, grandson’s 
daughter (w), paternal uncle’s son’s daughter (x), 
and others, which are a burden on the estate. 

A daughter inheriting to her father or mother may defray the marriage expenses 
of her own daughter or daughter's daughter out of the estate, if the father of the girl to be 
married, is a man of no means and is unable to defray those expenses {y). But a widow 
inheriting to her husband is not entitled to defray the marriage expenses of her daughter's 
daughter {z), 

No hard and fast rule can bo laid down as to the amount of marriage expenses (o). 

{v) Gift by a widow to her daughter on the occasion of 
her marriage or at her gaund ceremony (6), also 
a gift to her son-in-law on the occasion of the 
daughter’s marriage (c) or a gift by way of 
marriage customary present called Bhat on the 
occasion of the marriage of her niece (husband’s 
sister’s daughter) (d), provided that in either 
case the gift is of a reasonable amount. But 
there is no rule that the daughter is entitled to J 
share on the occasion of her marriage (e). 


(«f) Ishwari v . Babunandan (1925) 47 All. 563, 
88 I.C. 193, (’25) A.A. 495. 

(t) SadasMv v, tfhakubai (1881) 5 Bom. 450 at 

P. 460. See also Rairvmmran Prasad v. 
Shxmm Kuman (1922) 49 I. A. 342, 346, 
] Pat. 741, 745, 69 I.C. 71, ('22) A.PC. 
356. 

(u) Darbari Lai v. Oobind (1924) 46 All. 822, 

80 I.C. 31, (’24) A.A. 902. 

(f) Venkatasubba Jiao v. Atmnda liao (1934) 57 
Mad. 772, 155 I.C. 79, (’34) A.M. 432. 

(zo) Ramcoomar v. Icharaoiji (1880)0 Cal. 30; 
Debi Daml v. Bhan Perlap (1904) 31 Cal. 
433 ; Makhan v. Gayan (1911) 33 All. 
255, 9 I.C. 199 ; Ganpal v. TulsiramilOl^.) 
36 Bom. 88, 12 I.C. 271 [betrothal of 
daughter] ; Bhagwali v. Ram Jatan (1023) 
45 All. 297, 73 I.C. 048, (’24) A.A. 23. 
Mahadeo Prasad v. Mnsammat Dhanraj 
(1926) 1 Luck. 477, 95 I.C. 574, (’20) A.O. 
425. 

(x) Baijnath Rax v. Mangla Prasad (1926) 5 Pat. 

350, 90 I.C. 732, (’20) A.P. 1. 

(y) Rustom Singh v, Moti Singh (1896) 18 All. 

474 ; Rajagopalachariar v. Sami Reddi 
(1926) 50 ilad. L.J. 221, 93 I.C. 49, (’26) 
A.M, 517 , Kamla Prasad v, Lalgx Prasad 
(1030; 9 Pat. 721, 127 I.C. 842, (’30) A, P. 


GOO, Shnnxtas Rao v. Annadanam 
Seshacharulu (1942) Mad. 42, 198 I. C. 
169, (’42) A.M. 106. 

( 2 ) Narainbaii v. Ramdhari (1910) 1 Pat. L. J. 
81, 34 I.C. 277, (’16) A.P. 178. 

(a) (1923) 45 All. 297, 299, 73 I.C. 648, (’24) 

A.A. 23, supra ; C/iuraman v. Gopi Sahu 
(1910) 37 Cal. 1, 5-6, 1 I.C. 945 ; (1926) 1 
Luck. 477, 05 I.C. 574, (’26) A. 0. 425, 
supra, 

(b) (1909) 37 Cal. 1, 1 I.C. 045, supra ; Jowala 

Ratny. Uari (1924) 5 Lab. 70, 80 I.C. 680, 
(’24) A.L. 429 ; Udai Dat v, Audnka 
Prasad (1927) 2 Luck. 412, 100 I.C. 503, 
(’27) A.O. 110. 

(c) Rama v. V engidusami (1898) 22 Mad. 113 ; 

Ram Sumran v. Gohind Das (1920) 5 Pat. 
646, 99 I.C. 789, (*20) A.P. 582. 

(d) Gulab Devi v. Banwarx Lai (1940) AH. 556, 

190 I.C. 202 (’40) A. S. 403 (1940) A. L. J. 
464. This case secTiis to go too far, 
though the plaintiff's action in questioning 
the alienation seems to be without 
any grace as it was for her own daugUter’i 
marriage. 

(c) Krishna Pratap Singh v. Prembada Kxinioar 
(1942) All. 708, 203, I.C. 97, (’42) A.A. 866, 
(1942) A. L. J. 487. 



ALIENATION BY WIDOW. 


187 


Tbe fact that the gift was made a few days after the marriage would not invalidate 
the gift ; nor the fact that daughters in the family to which the parties belong are 
excluded from inheritance by custom (/). 

(5) Alienation by widow for “ the benefit of the estate .” — 
Besides legal necessity a widow or other limited heir may 
alienate the estate “ for the benefit of the estate ” [see sec. '243 
A]. An alienation of property to meet the costs of htigation 
necessary for preserving the estate is an alienation “ for the 
benefit of the estate ” {g). So too is an ahenation for making 
necessary repairs to properties belonging to the estate. But an 
alienation for developing or improving the properties is not one 
“ for the benefit of the estate,” though it may bring additional 
income, and it does not bind the reversioners [h). 

181C. Alienation for legal necessity by one widow without 
consent of other widows. — If a Hindu dies leaving two widows 
they succeed as joint tenants with a right of survivorship, 
but they can partition the property so that each may separately 
enjoy an equal share of the income [s. 43, no. 4, note (4)]. 

If they act together, they can alienate the corpus of the 
estate for debts contracted for necessity, but one of them 
cannot prejudice the right of survivorship of the other by aliena- 
tions, even though for a legal necessity, save by the consent of ; 
the other, or possibly save where that consent has been applied ' 
for and unreasonably withheld. The mere fact that a partition 
has taken place between them does not imply a right to 
prejudice the claims of the survivor (i). The arrangement 
between the two widows may be of such a character that each 
may relinquish her right of survivorship as to the portions of 
the estate held by the other. In such a case the alienation 
(vdth or without legal necessity and without the consent of 
the other) cannot be questioned by the other but it will not 
bind the reversioners {j). 


(/) Udai Dat v. Amtnka Prasad (1927) 2 Luck. 

412, 414, 415, 100 I.C. 530, (’27) A.O .110. 
(g) Karimuddin v. Govind Krishna (1909) 31 AH. 
497, 36 LA. 138, 3 I.C. 795 ; Debi Dayal 
V. Bhau Pertap (1904> 31 Cal. 433 , 
Jagdat Singh v. Rawat (1929) 4 Luck. 
20, 112 I.C. 238, (’29) A.O. 364 ; Maniklal 
V. Kisni (1941) Najjpur, 135, 192 I.C. 
798, (’41) A.N. 28; Suraj Prasad v. 

Makhnu Devi (1945) All. 465. 

(A) Hutij V. Qone.sh (1884) 10 CbI. 823 : Qunap 
V. Subbi Q908) 32 Bom. 577 ; Makhan v. 
Gayan (1911) 33 All. 255, 9 I.C. 199, 
supra. Tn Dayamani v. Srinibash (1900) 
33 Cttl. 842, the circumstances were special. 


(i) Gagapaii v. Pusapati (1892) 19 I. A, 184, 
10 Mad. ] ; Gauri Nath v. Gaya Kuar 
(1928) 55 I.A. 399, 111 I.C. 485, (’28) 
A. PC. 251, overruling Jai Narain v. 
Munna Lai (1928) 50 All. 489, 107 
I.C. 699, (’28) A.A. 92. Sec also Vallura 
V. Sasapit (1925) 49 M.id. L. J. 479, 
90 I.C. 881, (’26) A.M. 0 ; Krishna Pratap 
Singh Prcnibada Kunwar (1932) All. 
708, 203 I.C. 97, (’42) A.A. 305 (1942) 
A.L.J, 487. 

(?) Dulhin Parbati Kuer v. Baijnaih Prasad 
(1935) 14 Pat. 518, 155 I.C. 213, (’30) 
A.A. 300 ; Ammani Amma v. Periasami 
XJdayar (1923) 45 Mad. L.J. 1, 74 I.C. 58. 


Ss. 1811 
181C 



188 


HINDU LAW, 


Ss. 

181C- 

182 


A Hindu dies leaving two widows A and B, and leaving two properties X and V. 
TUe widows divide the properties so that A obtains possession o£ property X, and 
B of property T. A afterwards mortgages property X for debts contracted by her for 
a legal necessity, and puts the mortgagee in possession. On A’s death, B is entitled to 
possession of property X from the mortgagee. 


The same principles apply to two or more daughters {k)» 


181D. Alienation by widow may be by way of mortgage 
or sale. — V¥bere a case of necessity exists, tbe widow or other 
limited heir is not bound to raise money on her personal 
security. She may sell the property or mortgage it. She is not 
bound to mortgage it, if a mortgage would be more prejudicial 
to her than a sale by reducing her income to a greater 
extent (1). Even if a mortgage would have been more 
beneficial than a sale, still if she and the purchaser are both 
acting honestly, the sale cannot be set aside on the ground 
solely that she ought to have mortgaged anS not sold (m). 
If the property has been mortgaged, but the income of the 
property is not sufficient to pay the interest on the mortgage- 
debt, she may sell the property even before the debt is due, if 
in the circumstances this is a proper, though not a necessary, 
course to take. “ A widow, like a manager of a family, must 
. be allowed a reasonable latitude in the exercise of her powers, 
■ provided, she acts fairly to her expectant heirs ” (n). 


182. Burden of proof of necessity. — Those who deal 
with a person who has only a limited interest in the property 
and who proposes to dispose of a larger interest, are prima 
facie bound to make out the facts which authorize such a 
disposition. The power of a widow or other limited heir to 
sell or mortgage the estate inherited by her is a limited and 
qualified power. She is at perfect hberty to dispose of her 
own life-interest in the estate, but if she proposes to alienate 
the corpus of the estate either by way of sale or mortgage, the 
purchaser or motgagee is bound to inquire into the necessity 
> for the sale ox mortgage. If the sale or mortgage is impeached, 
the burden lies on him to prove — 


(a) either that there was legal necessity in fact ; (o) or 


(k) Yelumal CheUy v. Natenachari (1945) 

Mad. 35, 

(l) Singam v. Draupadi (1908) 31 Mad. 153 ; 

Jtal Krishna v. Hira Lai (1919) 41 All. 
338, 345, 50 I.C. 74, ('19) A.A. 400. 

(m) Phoolchand v. Rughoobuns (1869) 0 \¥.R. 

108 ; Nabakumar v. lihabasundan (1807) 


3 Ben. L.R. (A.C.J.) 375. 

(n) V^mkaji v. Vishnu (1894) 18 Bom. 534, 536. 

See also Niamat Rai v. Din Dayal (1927) 
54 I.A. 211, 8 Lah. 597, 101 I.C. 373, 
(’27) A. PC. 12] [powers of mann^^e^l. 

(o) Bajrang Singh v. Qobindprasad (1936) 11 

Luck. 11, 154 I.C. 841, (’35) A.O. 373. 



ALIENATION BY WIDOW. 


189 


(b) that he made proper and bona fide inquiry as to the / S, 182 
existence of the necessity, and did all that was 
reasonable to satisfy himself as to the existence of 
the necessity (p). 

If he proves that there was a necessity in fact, the aliena- 
tion will be upheld, even though the necessity was brought 
about by the mismanagement of the limited heir {q), unless it 
be shown that he himself contributed to the mismanagement. 

Even if he fails to prove that there was a necessity in fact, 
the alienation will be upheld, if he proves that he made such 
inquiry as aforesaid, and that the facts represented to him were 
such as, if true, would have justified the transaction [ill. (1)]. 

In no case, however, is he bound to see that the money paid 
by him is applied J;o meet the necessity. The reason is that he 
can rarely have the means of controlling the actual application, 
unless he himself enters on the management (r). 

The same rule applies to a trai^feree from an alienee (s) 

[ill. (2)]. 

lllustrationn^ 

(1) A, 0 . Hindu widow, whoso husband has left coJJateraJ heirs (reversioners) alJeg. 
ing that the property held by her as such is insufficient for her maintenance, agrees to 
sell a field, part of such property, to B. B satisfies himself by honest and reasonable 
enquiry that the income of the property is not sufficient for A's maintenance and that 
the sale of the field is necessary, and acting in good faith, buys the field from A. The 
sale is binding not only on the widow; but on the reversioners, even if it turns out that 
there was no necessity in fact to sell the property. See the Transfer of Property Act 
1882, s. 38, and s. 244 below, 

(2) A Hindu governed by the Madras school of Hindu law dies leaving a daughter 
and her [daughter’s] son. The daughter succeeds to his propertjr for a woman’s estate. 

Litigation ensues in respect of the estate between the daughter and a grandnephew M 
of the deceased. A compromise is arrived at between the daughter and M whereby 
the estate of the deceased is divided equally between them. M knew that he had no 
honest claim to the estate. M then mortgages the property that came to his share to 
K, the mortgage deed stating that the property had been transferred to M under the 
compromise. The daughter’s son sues M and K for a declaration that the compromise 
and the mortgage are not binding on him. The compromise between the daughter and 
M is set aside as not binding on the daughter’s son. Is K in any better position than 
M ? The Judicial Committee has held that he is not. K had notice that took from 


{p) Ramanatid Lai v. Damodar Das {19A1) All. 
820, 199, l.C. 309, (’42) A.A. 110, (1942) 
A.L.J. 94. 

(q) Rai Rajeshwar Bali v. Har Kishen Bali (1933) 

8 I.uolc. 538, 150 l.C. 346, (’33) A.O. 170. 

(r) Bunoaman Persavd v. I\fitS3a}nat Babooee 

(1856) 6 M.I.A. 393; Cavalq Vencata v. 
Collector of Masulipatam (1867) 11 M.I.A. 
619 ; Kameswar Perskad v. Run Bahodoor 
(1881) 0 Cal. 843, 8 I.A. 8 ; Hurro Nath 
V. Randhir Singh (1891) 18 Cal. 311, 18 I. 


A. 1 ; Amamath v. Achan Kuar (1892) 
14 All. 420, 19 I.A. 196 ; Maheshar v. 
Ratan Singh (1896) 23 Cal. 766, 23 I.A. 
67 ; Sham Sunder y. Achhan Kunwar {18^9) 
21 All. 71, 25 I.A. 183 ; Dharainchand v. 
Bhawani (1898) 25 Cal. 189, 24 lA. 183 ; 
Bhagwat Dagal v. Dcbi Dayal (1908) 
35 Cal. 420, 35 I.A. 48 ; Ghansham Sxngh 
V. Badiya Lai (1902) 24 All. 547. 

(«) Obala Koiidama v. Kandasan.i (1924) 61 
J.A. 145, 47 Mad. 181, 79 l.C. 981, (’24) 
A. PC. 56. 



190 


HINDU LAW. 


S. 182 


one who was a limited heir, and he was therefore bound to inquire whether the compro- 
mise was valid, but he had failed to do so. “ Here there is no proof either of necessity 
or of inquiry validating the compromise.” The mortgage to K also was therefore held 
not to be binding on the daughter’s son. The provisions of ss. 89 and 96 of the Indian 
Trusts Act, 1882, do not apply to such a case : Obala Kondanut v. Karulasarni (1924) 
51 I.A. 145, 47 Mad. 181, 79 I.C. 961. (’24) A.PG. 56. 

What the alienee must prove. — “ One who claims title under a conveyance from a 
woman, with the usual limited interest which a woman takes, and who seeks to enforce 
that title against reversioners, is always subject to the burden of proving not only the 
genuineness of his conveyance, but the full comprehension by the limited owner of the 
nature of the alienation she was making, and also that the alienation was justified by 
necessity, or at least that the alienee did all that was reasonable to satisfy himself of 
the existence of such necessity” (<)• “In order to sustain an alienation by a Hindu 
widow of the corpus of her husband's estate, it must bo shown, either that there was 
legal necessity for the alienation, or, at least, that the grantee was led on reasonable 
grounds to believe that there was ” (m). Lapse of time does not affect the question of 
onus of proof regarding necessity except in so far as it might give rise to a presumption 
of acquiescence, or save the alienee from adverse inferences arising from the scanty proof 
which might be offered on his behalf (v). ® 

Recitals of necessity. — Recitals in mortgages or deeds of sale of the existence of 
necessity are admissible in evidence («»), but they are not evidence by themselves of the 
act (a:), To substantiate the allegation of the existence of necessity there must bo some 
evidence aliunde (y). The reason is that the alienee, to protect his interest, may get 
false recitals to be made {z). But when by effluxion of time evidence independent of 
the recitals becomes unavailable, a recital of necessity, consistent with probability and the 
circumstances, assumes greater importance; it is clear evidence of a representation to 
the purchaser, and, when evidence of actual inquiry by him has become impossible, the 
recital, coupled with circumstances which justify a reasonable belief that an inquiry 
would have confirmed its truth, is sufficient evidence to support the deed (a). 

The absence of a recital of necessity in a deed of sale does not vitiate the sale. The 
necessity may be proved by other evidence (6). 

Lapse of lime, — Where a long period (82 years) has elapsed since the sale took place, 
it is not reasonable to expect such full and detailed evidence of the circumstances which 
gave rise to the sale as in the case of an alienation at a more recent date, and presump- 
tions are permissible to fill in the details which have been obliterated by time (c). 


(G Bhagwai Dayal v Devx Dayal (1008) 35 Cal. 
420, 35 I.A. 48, 57-58. 

(u) Avhnrnath v. Achan Euar (1892) 14 All. 420, 
429, 19 I.A. 196, 202. 

{v) Bavaneshwar v. Chandi Prasad (1911) 38 
Cal. 721, 12 I.C. 931, affmd. (1915) 43 
Cal. 417, 36 I.C. 499, ('15) A.PC. 57. 

(w) Banga Chandra v. Jagat Kishore (1915) 43 
I.A. 240, 44 Cal. 186, 30 I.C. 420, (*16) 
A.PC. 110 ; Darbari Lai v. Gobind (1924) 
46 All. 822, 826, 80 I.C. 31, (’24/ A.A 002. 
(z) Bednath v. Rarii Rajeshwari Deit (1938) 
13 Luck. 357, 168 I. C. 725, ('37) A. O. 
406. 

(y) Bnj Lai v. Indar Kunwar (1914) 36 All. 187, 
23 I.C. 715, ('‘14) A.PC. 38 ; Bisioanath v. 
Kayaslha Trading Corporation (1920) 8 Pat. 
450, 119 I.C 405, (’29) A.P. 422 : Rajlakhi 
Debia v, Gokul Clw.ndra (1869) 13 M, 
I.A. 209, 3 Beng. L.R. (P.C.) 57. See 
also Vasonji v. Chanda Bxbi (1915) 37 
All. 369, 376, 29 I.C. 781, (’15) A.PC. 18 ; 
Debendranath Sarma v. Nagmdranaih Dull 
(1933) 60 Cal. 1158, 149 I.C. 522, ('33) 
A.C. 900. 


(z) Muhammad v. Br\) Bihari (1924) 40 All. 
656, 82 I.C. 5, (’24) A.A. 939. 

(rt) Banga Chandra v. Jagai Kishore (1916) 43 
I.A. 249, 44 Cal. 186, 30 I.C. 420, (10) 
A.PC. 110 ; Ram Narain v. Nundrani 
(1928) 50 All. 823, 114 I C. 808, (’20) A.A. 
12^ \ Thahar Sivghw Mst.CUnm (19) 10 
Lah. 613, 118 I.C. 449, (’29) A.L. 295 Rai 
Rajeshwar Bah v. Uar Kishen Bah (1933) 
8 Luck. 538, 150 I.C. 346, (’33) A.O, 170. 

(6) Womesh Chunder v. Biijumbure (180) 3 
W. B. 154. 

(c) ChiulamanibhaUa v. Rani of Wadhwan (1920) 
47 I.A G, 43 Mad. 541, 55 I.C. 538, (’20) 
A.PC. 64 ; Raranesicar v. Chandi Prasad 
(1910) 43 Cnl. 417, 30 I.C. 499, (’15) A.PC 
57 aflmg. (1911) 38 Cal. 721, 12 I.C. 931"; 
Ram Narain v. Nandrani (1928) 50 All. 
823, 114 I.C. 868, (’29) A.A. 128 ; Thakar 
Bingk v. Mst. TJitam (1920) 10 Lah. 013, 
118 I.C. 449, (’29) A. L. 295 ; Piari Lai 
V, Sandar Singh (1022) 44 All. 750, 68 
I.C. 805, (’22) A.A. 430 ; Babulal v. Manik 
iat(1941) Nagpur 124, 192 I.C. 826, (’41) 
A.N. 79. 



ALIENATION BY WIDOW. 


191 


Hate of interest: — See notes to s. 244 under the same head. 

Burden of proof : “ Consent decree'"* involving alienation to mortgagee. — Ifc has been 
held by a Full Bench of the Madras High Court that where a widow who has mortgaged 
her husband’s property is sued by the mortgagee, and the suit is compromised by a 
transfer of the property by the widow absolutely in consideration of the mortgage debt, 
the burden of proving that the compromise was valid and binding on the reversioners is 
on the mortgagee purchaser (d). In a recent Privy Council case a widow sued upon a 
mortgage executed to her husband and obtained a decree for sale. She then purchased 
with the leave of Court some of the mortgaged properties at the auction-sale. The 
mortgagors filed a petition in objection to the sale. The widow then entered into a com- 
promise with the mortgagors. The High Court of Patna held that the burden was on the 
reversioners impeaching the compromise to show that the compromise was not binding 
on them. Their Lordships of the Privy Council said : “ Their Lordships do not find 
it necessary to consider whether the judgment of the High Court, in so far as it places 
the burden of proof upon the present appellants [reversioners], is absolutely and without 
qualification sound” (e). See also ill. (2) above. 


Ss. 

182,183 


183. Alienation by widow with consent of reversioners, 
that is, for presumptive legal necessity. — (2) When the alie- 
nation of the whole or part of the estate by a Hindu widow 
or other limited heir is to be supported on the ground of legal 
necessity, then if such necessity is not proved aliunde and the 
alienee does not prove inquiry on his part and honest belief in 
the necessity, the consent of such reversioners as may fairly 
be expected to be interested to dispute tbe transaction will be 
held to afford a presumptive proof which, if not rebutted by 
contrary proof, will validate the transaction as a right and 
proper one (f). 


Mere consent of the next reversioner does not validate an 
alienation ; it is only of evidential value. It is no conclusive 
proof of the existence of legal necessity. It raises a presump- 
tion of the existence of legal necessity. As the matter rests in 
presumption only, the actual reversioner at the widow’s death 
is not precluded from questioning the alienation, but tbe burden 
lies upon bim to show that there was no legal necessity for the 


(d) Tirupaliraju v. Venkayya (1922) 45 Mad, 

504, 57 I.C. 479, (’22) A.M. 131 (F.B.l. 

(e) Ramsamran Prosad v. Shvam Kumari (1926) 

49 I.A. 342, 349-350, 1 Pat. 741, 749, 29 
I.C. 71, (’22) A. PC. 356. 

(/) Ranga^anir v. Nachiappa (1919) 46 I. A. 72, 
42 Mad. 623, 50 I.C. 498, (’18) A.PC. 196 ; 
Bajrangx Singh v. Maiiohamika (1908) 30 
All. 1, 35 T.A. 1, overrulinff Ramphal Rai 
V. Tula (1884) 6 All. 110 ; Dehi Prosad v. 
Qolap Pha 7 al (1913) 40 Cal. 721, 19 I.C. 273 
[F.B.] ; Vinayak v. Gonnd (1901) 25 Bom, 
129 : Pilit V. Babaji (1910) 34 Bom. 105, 
4 I.C, 584; Ramlrishna v. Tripurabai 
(1911) 13 Bom. L. R. 940, 12 I.C. 529; 
Bijoy Gopal v. Girindia Nath (1914) 41 


Cal. 793, 805, 23 I.C. 162, (’14) A.PC. 128 ; 
Moti V. LaUJafs (1917) 41 Bora. 93, 37 I.C. 
945, {'10) A. B. 85 ; Ghisiawan v. Mussam- 
mat Raj Kumari (1021) 43 All. 534, 63 I.C. 
556, (’21) A, A. 33 [prcsumptloix rebutted) ; 
Bkap Singh v. Jhamman Singh (1921) 44 
All. 9.5, 64 I.C, 630, (’22) A. A. 169 ; Darbari 
Lalw G'o5i«d(1924) 46 All. 822, 80 T.C. 31, 
(’24) A. A, 902 [presumption not rebutted] . 
Mahammad Sa'id v. Kunwar Dar'^han 
(1928) 50 All, 75, 103 I.C. 116. (’27) A. A. 
83.5; Ramainurihy v. Bhumsanlararao 
(1938) Mad. 688, 178 I.C. 784, (’38) A.C. 
433; Allah Diga v. Sona Deti (1942), 
All. 74.5, 204 I.C. 133, (’42) A.A. 331 
(1942) A.L.J. 443. 



192 


HINDU LAW. 


S.183 


alienation (ill. (a)] (g)' When he adduces no evidence to rebut 
the presumption he must fail (h). The mere fact that the 
consent was given for ar-consideration does not negative the 
presumption (i). If the consenting reversioner himself is 
the actual reversioner, he will be precluded by his consent 
from questioning the alienation [sec. 191] unless he can show 
that his consent was obtained by misrepresentation of the 
facts (j). When the presmnption, that the alienation was 
justified by legal necessity, had been displaced, there is no 
presumption that any of the items constituting the consideration 
were justified by legal necessity and the onus of proving legal 
necessity for any item is on the ahenee (k). 


Where an alienation is made without the consent of the next reversioner, the 
burden Ues on the alienee to show that the transaction was one for legal necessity [s. 182], 

(2) The quantum of consent necessary to raise this pre- 
sumption depends upon the facts of each particular case. Ordi- 
I narily the consent of the whole body of persons constituting the 
/ next reversion should be obtained, though there may be cases in 
which special circumstances may render the strict enforcement 
of this rule impossible. In any case there should be such a 
concurrence of the members of the family as suffices to raise 
a presumption that the transaction is a fair one and one justified 
. by Hindu law. The consent^ may be given at the time of 
alienation or it may be given feven after alienation ( I ) [ill. (c)]. 


The consent to be of any effect must be given with full 
knowledge of the circumstances (m) and of the effect of the 
transaction and with an intelligent intention to consent to such 
effect. Mere attestation of a deed does not necessarily import 
consent to an ahenation effected by it (w). 


(g) Muhammad Said v. Kanwar Diirshan (1928) 
60 All. 75, 103 I.C. 116, (’27) A A. 835, 
178 I.C. 784, (’38) A. C. 433 , Hamamurthy 
■V. Bhima^ankararco (1938) Mad. 688. 

(ft) Rai Bajrang Bahadur Singh v. Rum^shor 
But Singh (1937) 12 Luck. 684, 166 I.C 
113, (’37) A. 0. 189. 

(i) Bajrangi Singh v, Manokamtka (1907) 30 

All. 1, 35 I. A. 1 ; Am'/ika Prns^ad v. 
Chandramam (1929) 8 l^at. 396, 117 I.C* 
867, (’29) A.P. 289. 

(j) Uarendra Nath Mukherji v. Uari Pada 

Mukherji (1938) 2 Cal, 492. 

(i) Indarjit Singh v. Jaddu (1933) 55 All. 157 
144 I.C. 108, (’33) A.A. 109. 

(Z) (1907) 30 All. 1, 35 LA. 1, mpra ; approving 
Raiiha Shyam v. Joya Ram (1890) 17 Cal. 
8Q6 *, Raj Bukhee Ba/ie v. Gokoo Chundar 


(1869) 13 il.l.A. 209, 3 Beng. L.B. (P.C.) 
67 ; Sham Sunder Lai v. Achhan Kunwar 
(1898) 21 All. 71, 25 I, A. 183; (1914) 
41 Cal. 793, 23 T.C. 162, (’14) A. PC. 
128, Buvra; (1913) 40 Cal. 721, 19 I.C. 
273, «upro. 

(w) Harendra Nath Mukherji v. Bari Pada 
ilfwfcftcrji (1938) 2 Cal. 492. 

(n) Sham Sunder v. Acchhan Kunwar (1898) 
25 I.A. 183, 189, 21 All. 71, 80 ; Bari 
Kishen v. Kashi Perskad (1914) 42 I.A. 
64, 42 Cal. 876, 27 T.C. 674, (’14) A . PC. 90 : 
Bargu Chandra v. Jagat Kishore (1916) 
43 I.A. 249, 255, 44 Cal. 186, 199, 86 
I.C. 420, (’10) A. PC. 110; Thakur 
Prdaad v. Musammai Lipa Kuer (1931) 
10 Pat. 352, 302, 134 I.C. 129, (’31) A-P. 
442 ; Bar MUra v. Raghubar (1928) 3 
Luck. 645, 110 I.C. 618, (’28) A.O. 342. 



ALIENATION BY WIDOW. 


193 


The “next” reversioners referred to above are persons who would be entitled to 
succeed to the estate of the last full owner if the widow had died at the moment of the 
alienation. They are also called “next presumptive reversioners” or “immediate” 
reversioners. The more remote reversioners are called in some cases “ contingent,” in 
some cases “ subsequent,” and in some cases “ distant ” reversioners. 

Where the next reversioner is a female, as, for instance, 
a daughter, her consent alone is not sufficient to ..validate an 
alienation, whether she takes a limited estate (o), or an absolute 
estate as in Bombay (j9). In such a case the consent both of the 
female reversioner and the immediate male reversioner is neces- 
sary to validate the alienation {q) [ill. (b)]. But though her 
consent alone would not validate the transaction so as to bind 
the Inversion, it would preclude her from impugning the validity 
of the alienation on the principle stated in sec. 191 (r). 

The consent of a female reversioner cannot be regarded as affording the slightest 
presumption that the alienation was a justifiable one. The reason is that by Hindu 
law all women are supposed to be in a state of dependence (s). An alienation with the 
consent of a female reversioner and a distant male reversioner will not bind the immediate 
male reversioner ((). 

{3) An alienation made with the consent of reversioners 
may be of the whole or of a part of the estate ; it need not 
be of the whole estate (u). 

Prior to the decision of the Privy Council in Bangastoami’s case (r), it was held by 
the High Court of Madras that, where an alienation made by a widow is sought to be 
supported on the sole ground that it was made with the consent of the next reversioners, 
the alienation must be of the whole of the qiroperty inherited by her and that an alienation 
of a portion only of the property is not valid (io). On the other hand, it was held by the 
High Court.s of Calcutta {x) and Bombay (y), that a valid alienation may be made even 
of a portion of the property. The Privy Council has rejected the Madras view, and held 
that the alienation may be partial. 

(4) The alienation must be one for consideration, e.g.. 
a sale, a mortgage or a lease (z). Except in the cases mentioned 
in sec. 179, ,sec. 18lA {2) (iii), and sec. 18lB [2) (v), a gift 
by a widow or other limited heir of the whole or any part 


(0) Bepin Behai i v. Durga Churan (1908) 3r> C’al. j 

1080 ; Kooer Goolub Singh v. llao Kurun | 
Singh (1871) 14 5I.T.A. 170. : 

(j)) Farjifart V. G/teyi (1881) 5 Bom. 503 (daugh- , 
ter) ; Vinayak v. Gonnd (1901) 25 Bom. 
129, 134-135 (sister) ; Pilu v. Babaji (1909) j 
34 Bom. 165, 4 I,C. 584 (daugbter). But i 
see Malik Saheb v. Malik Atjunappn '• 
(1914) 38 Bom. 224, 22 l.C. 292. ('14) \ 
A.B. 187, where it was assumed that a | 
daughter’s consent was sutlicient. j 

{q) (1881) 5 Bom 503, supra ; (1901) 25 Bom. 
120, 134-135, supra. 

(r) Akkawa v. Sm/adkhau (1027) 51 Bom. 475, 
102 [.(’ 232, (’27) A.B 260. 

(1) 5 Bom. 503. at p. 571, supra. 

(0 Mahammids . Bri} Bihmi (1924) 46 All. 656, , 


82 I, C. 5, (’24) A. A. 939. 

(w) Rangasamw, Nachiappa (1919) 40 I. A. 72 

81-84, 42 Mad. 523, 533-536, 50 l.C. 498 
(*18) A. PC. 196. 

(r) (1919) 46 I.A. 72, 42 Mad. 523, 50 l.C. 498 
('18) A.PC. 196, supra. 

(*o) MtUhuveeni v. Vi/thiiiyiga (1909) 32 Mad 
206, 3 I. C. 476 ; Marudamuthu v. Shri 
nitasa (1898) 21 Mad. 128. 

(x) Pulin Chandra v. Bolai Mandal (1908) 3.' 

Cal. 939. 

(Z/) See v. Gorind (1901) 25 Bom. 120 

where a sale of a portion only was up 
held. 

(i) Bijoy Gopaf v. Girijidranath (1914) 41 Cal 
793 [l*.C,l, 23 l.C. 162, (’14) A PC. 12^ 
(lo.ase for 00 years held valid]. 


S. 183 



194 


HINDU LAW. 


S. 183 


of the estate inherited by her to a third j>cyson (that is, a 
person other than the next reversioner), is not binding on the 
actual reversioner, even if made with the consent of the next 
reversioner. The consent of the next reversioner, though it 
affords good evidence of legal necessity in the case of an 
alienation for consideration, cannot possibly afford such 
evidence in the case of a gift, there being no room for the' 
theory of legal necessity in the case of a gift (a). 

A gift of the entire estate to the next reversioner or reversioners 
amounts to a surrender, and is good on that ground [s. 197]. 
But a gift, though it be of the entire estate, to some only of 
several reversioners without the consent of the rest (6), or a 
gift of part of the estate thougli it be in favour of the whole 
body of reversioners (c), does not amount to a surrender. 
It is a gift pure and simple, and it cannot be supported as an 
alienation under this section (d). It stands on the same 
footing as a gift to a stranger, and it may be avoided by the 
actual reversioner at the -widow’s death. 


A deed of gift of part of the estate in favour of the next 
reversioner where there is only one such, followed by a deed 
of sale by him of that part to a third party, may be supported 
as an “ alienation with the consent of the next reversioner ” 
under this section, if the two documents are so connected as 
to form one transaction, that is, a transaction of sale (e). A 
conveyance of the whole estate by a Avidow and the next 
reversioner jointly to a stranger is valid but an alienation by 
a widow to a stranger and the next reversioner is not vahd, 
especially if the reversioner is a minor (/). 


The High Court of Calcutta has held that a gift of the 
entire estate by a widow to a third person with the consent 
of the whole body of the next reversioners, may be supported 
as a surrender under sec. 197 ; such a gift, in the view of that 


('/) liangasivarni v. yacfi}appa (191S)) 46 I. A. 
72, 85, 42 Mad. 523, 537, 50 I.C. 498, 
(’18) A.PC. 196 ; Ptlu v. Babaji (1909) 34 
Bom. 165, 4 I. C. 584 ; Bakhtawar v. 
Bfingu-ana (19101 32 All. 176, 5 I.C. 270 ; 
Abdulla V. liam Lai (1912) 34 All, 129, 12 
I.C. 129 ; Khaxcam Swyh v. Chet liam 
(1917) 39 All. 1, 37 I.C. 86. ('17) A.A. 
341 ; Barihur v. TJdainath (1923) 45 All. 
260, 74 I.C. 113, ('23) A.A. 190 (next 
reversioner an insolvent — j:ift made to 
hi-j POD with his consent — piftheJd bad — 
creditor’s claim iiiiheld] , iSmdeshti'ari v. 
Bar Xarain (1929) 4 Buck. 622, 127 


I.C 20, (’29) A.O. 185. 

(b) Khaiiayii Singh v. Chet liam (1917) 39 All* 

1, 37 I.C. 86, (’17) A.A. 341 ; liaghunandan 
Sinqh v. Tulsi Swgh (1024) 46 All. 38, 
75 I.C. 244, (’24) A.A. 315. 

(c) Pilu V. Babaji (1909) 34 Bom. 165, 4 I.C. 

584. 

(d) See (1919) 46 I.A. 72. 42 3rafi. 523, 50 I.C. 

498, (’18) A.PC. 196, fiipra, 

(c) Muhammad Sa’id v, Kumcar Dart^han (1928) 
50 All. 75, 103 I.C. 116, (’27) A.A. 835. 
(/) Bala V. Bava (1936) 60 Bom. 211, 38 Bom. 
L.R 1087, 106 I.C. 771, (’37) A. B. 43. 



ALIENATION BY WIDOW. 


195 


Court, amounts in effect to two transactions, namely, (1) a S. 183 
surrender in favour of the next reversioners which would 
vest the estate in them, and (2) a gift by them of the estate 
to the third person (g). On the other hand, it has been held 
in Bombay that such a gift is not validated even if made 
with the consent of the whole body of the next reversioners, 
and that though it may be binding on the widow and the 
consenting reversioners, it is not binding on the actual 
reversioner on the widow’s death nor on a son subsequently 
adopted by her {h). The question arose in a recent Privy 
Council case {i), but their Lordships expressed no opinion 
on it, the transaction having been set aside on the ground 
that the consent of the next reversioner was not proved. 

(5) An alienation made by a widow without legal 
necessity and without the consent of the reversioners does 
not bind the reversioner {j ) ; it binds only her interest in 
the property [s. 185]. 

In liangaswami v. Nachiappa (k) a gift was made by a widow to the nearest rever- 
sioner who was the cousin of the last owner. The gift was only of a portion of the property. 

Their Lordships of the Privy Council held that the transaction being a gift it could not 
possibly be held to be evidence of an alienation for value for purposes of necessity so as 
to bind the actual reversioner. Nor could it be supported as a surrender [s. 197], for a 
surrender must be the whole estate, and the gift in that case was of part only of the 
estate. 

Illustrations. 

(a) A Hindu dies leaving a widow, three brothers, and a paternal uncle. He leaves 
three houses. The widow sells one of the houses to X with the consent of all the brothers. 

Here the brothers constitute the next reversion, while the uncle is a remote reversioner. 

The sale having been made with the consent of the brothers, it is binding on the whole 
reversion including the actual reversioner. The result is that if all the brothers die in 
the lifetime of the widow, and the uncle succeeds to the estate on the widow’s death, 
the sale will bind him, though he was not a consenting party to it, unless he proves that 
there was no legal necessity for the sale and that the purchaser did not bona fide believe 
that there was such necessity. See sub-sec. (1). 

(b) A dies leaving a widow, a daughter, a brother and a paternal uncle. The 
widow succeeds to the estate of A as his heir. She then sells the property with the 
consent of her daughter. After the death of the daughter and of the brother, the uncle 
disputes the sale. Here the consent having been given by a female reversioner, there 
is no presumption that the sale was for legal necessity. The burden, therefore, lies on 
the purchaser to show that the sale was for legal necessity, or that he had made proper 
and bona fide enquiries and had satisfied himself as to the existence of the necessity 


iff) Nobokisbore v. Hari Nath (18S4) 10 C^J. 1102 
[F. B.|, explained in Raiiijaszvami v. 
Nachiappa (IfllO) 46 I.A. 72, 80-81, 42 
Mild. 523, 533, 50 1 C. 498. (’18) -A.PC. 196. 
(/i) Tukaram v. Yesu (1931) 55 Bom. 46, 129 
IC. 591, ('31) A.B. 100. 

(t) Nampaia-iwami A'/yar v. Rama Ayyar 


(1930) 57 I.A. 303. 53 Mad. 692, 128 I.C. 
281, (’30) A.BC. 297. 

ij) Jlarendra Nath Mttkkerji v. Hari Pada 
Mukherji (1938) 2 Cal. 492. 

(/•) (1919) 48 I.A. 72, 83, 42 Mad. 523, 537, 50 
I.C. 498, ('18) A.PC. 196. 



196 


HINDU LAW, 


Ss. 

183485 


But if A's brother had consented to the sale, the burden would have been on the uncle 
to show that there was no legal necessity and that no such enquiries had been made by 
the purchaser. See sub-sec. (2). 

(c) A Hindu dies lejiving a widow' and four male lelatjons who are then the next 
leversioners. The widow, without the consent of the reversioners, executes several 
deeds of sale one after another of portions of her husband's estate to her son-in-law. 
Sometime afterwards all the reversioners pass a W'riting to the widow* ratifying the sales 
to the son-in-law' and agreeing not to dispute their validity. The sales are binding not 
only on the consenting reversioners, but also on the actual reversioners, unless it is shown 
by tbe actual reversioners that the transactions were not proper. It is immaterial that 
the consent was given aftrr the execution of the deeds: Bajarangi v. Nanokarnika 
(1908) 30 All. 1, 35 J.A. 1. See sub-sec. (2). 

Similarl}’ an alienation without legal necessity and with the consent of some of the 
reversioners does not bind other reversioners (Z). 

184. Effect of alienation made for legal necessity or with 
consent of next reversioner. — An alienation made by a widow 
or other limited heir of property inherited by her for justifying 
necessity, or \\dth the consent of the next reversioners as 
stated in s. 183, passes _an. absolute estate in the property to 
the alienee. It is not only binding on her, but also on the 
reversioners, including reversioners subsequently born (wi) 
or adopted (a). 

185. Effect of alienation made without legal necessity and 
without consent of next reversioner. — (J) An alienation made 
by a widow or other limited heir of property inherited 
by her, %\ithoiit legal necessity and without the consent of 
the next reversioners is not binding on the reversioners, but 
it is nevertheless binding on her so as to pass her own interest 
[that is life-interest] to the alienee (o). 

(2) Even as regards reversioners it is not absolutely 
void, but voidable at their option. They may affirm it, or 
treat it as a nullity Avithout the intervention of a Court, and 
they show their election to do the latter by commencing an 
action to recover possession of the property (p). In such a 
case he is not entitled to mesne profits for a period before 
the exercise of the election (5’). See s. 190. 


(0 Lakshmi Prasad Biugh Kunai 6i}i(jh ; 
(1944) All. 484. 

(r/») Yinayak v, Govind (1901) 25 Bom. 129. *. 

(n) Rajkriito v. EUJioree (1865) 3 IV. R. C.R. 1 
14 : Pilv V. BaUiji (1909) 34 Bom 165, ; 
4 I.C. 584; liamkrxshna v. 'J'ripurabai \ 
(1911) 13 Bora. L.R. 940, 12 I.C. 529. j 
( 0 ) Ramchandra v. BAimra* (1877)1 Bom. 577 ; * 
Chidarnbaraiivna v. Uusaipamma (1916) , 
39 Mad 565. 30 I C. 101, (’16) A.M. 347 , . 
Dfuinji V. Dhuma (1924) 20 Bom. L. B. I 
277, 80 I.C. 234, (’24) A.B. 382; 1 


(JoicuKlhandus v. Vint Mid (1920) 1 Lah. 
48, 55 I.C. 847, (’20) A L. 397. 

(p) Bijoy Gopai v. A'ris/ma (1907) 34 Cal. 329, 
34 I. A. 87 ; I'amgouda v. Bhaiisahfb 
(1927) 54 I.A. 396, 52 Born. 1, 105 i.Cx 
708, (’27) A. PC. 227 : K<>i\d(ivin Naicker 
V. Kiifida.famy fi'o\nidar (1924) 51 I. .4. 
145, 47 Mad. 181. 79 I.C. 961, (’24) A PC. 
56 In Mo<ihu isudan \ Booke (1897) 
25 Cal. 1, the alieuiitioii aau' atlirmed. 

(?) Mokanlal v. Jaa}iU'aix (1938) Bom 292, 40 
Bom. I, K 394, 176 I. C. 76. (’38) A. B 
298. 



ALIENATION BY WIDOW. 


197 


185A. Persons entitled to impeach unauthorized alienations.— 

The persons entitled to impeach unauthorized alienations 
by a widow or other limited heir are obviously lhe..,.next 
reversioners. It is not the law, however, that reversioners 
alone can impeach such alienations. Any person who has an ■ 
interest in the .succession is entitled to impeach them, e.g., the' 
Crown taking by escheat (r) [s. 176]. But a stranger to the 
reversion, e.g., a mortgagee from a widow, cannot impeach 
them (.s). As to suits by reversioners, see .sec. 207. 

lllustralions. 

A Hindu widow mortgiigcs a house forming part of her husband’s estate to J/ (who 
is not a reversioner). She then convey.^ the hou.se by way of gift to G. After the 
widow’s death, G sues M for redemption. jU contends tliat the gift is invalid [s. 183(4)], 
and that G is not therefore entitled to redeem. Is 31 entitled to challenge the gift ? 
No, because he is a stranger to the reversion : Silarmn v. Khandu (1921) 45 Bom. 105, 
59 I.C. 480, (’21) A.B. 41^ 

As to the remedies of reversioners in cases of unauthorised alienations, see s. 205 
below. As to limitation, see ss. 208-209. 

Escheat . — Even if there be no reversioners, a widow or other limited heir cannot 
alienate property inherited by her without legal necessity. Such an alienation will not 
bind the Crown where the Crown is entitled to the property by escheat in default of 
reversioners (t). 

Tenant dying without heir . — A landlord to whom the holding of a tenant reverts ' 
on the tenant's death without leaving heirs is entitled to challenge an unauthorized 
alienation made by the tenant, where the tenant is a Hindu widow or other limited • 
heir (w). 

186. Lease by widovi. — A widow or other limited heir 
may in the exercise of her power of management [s. 198] 

grant leases of properties belonging to the estate. But ' 
she has no power to grant a permanent lease or a lease for 
a long term so as to bind the reversion, unless it is justified by 
legal necessity (v), or it is for the benefit of the estate {w), or 
made with the consent of the next reversioners (a;). Apart 
from such necessity, benefit or consent, to create a new and 
fixed rent for all time, though such rent be adequate at the 


(r) Thakur Piasad v. Masauimat Dipa Kuer 
10 Pat. 3o2, 350-302, 134 I.C. 129, 
('31) A. P. 442 ; ^^uharaJn Kesbo Piasad 
V. Chaadrika (1923) 2 Put. 21T, 228, 08 
I.C 394, (’23) A.P. 122 ; V Khandu 

(1921) 4j Bom. 105, 59 I.C. 480, (’21) A.B. 
413 ; Jhar% v. Bijai (1923) 45 All. 013, 616, 
74 I C. 665, (’24) A.A. 109. 

(.s) Sdaram v. Khandu, supra ; Bipot Mahton 
V. Kulpat Mahton (1934) 13 Pat. 182, 153 
I.C. 439, (’34) A.P. 498 ; A jodhia Prasad v. 
Mi. Sanjhari Kuer (1931) 6 Luck. 710, 139 
I.C 631, (’32) A. 0. 342. 

(1) Collector of Masulipataw v. Cat'ahj Vencaia 
(1801) 8 M.I.A. 629 ; Kundan y. Secretary 
of Stale (1926) 7 Lah. 543, 96 I.C. 865, 
('20)A. L. 673. 


(H) Prasad Xath v. .4 mhica Pi asad (1930) 9 Pat. 
515, 117 I C. 030, (’30) A.P. 407. 

(f) SankarKath v. Bejoy Gopal (1908) 13 C.W.N, 
201 [lea&e for 60 years] ; Bljoy Copal v. 
Oirxndranalh (1914) 41 Cal 793, 23 I C 
162, (’18) A.PC. 128 [lease for 60 vears] | 
Kabakiskore v. TJpendrakishore (1923) 37 
Cal. L.J. 319, 74 I.C. C12, (’23) A.C. 563. 
(w) Bijoy Gopal v. Girindrawalh, supra [lease 
lor 60 years], 

(r) (1914) 41 Cal. 793, 23 I.C. 102, (’18) A. 
PC. 128, ,• (1908) 13 C.W..N’. 201, 

supra ; Upendru Saihy . Bindesn (I'dlb) 20 
C.W.N. 210, 32 I.C. 4C8, (’16) A.C. 843 
-Dayantaiu v. .SVmifeasA (1906) 33 Cal, 
842 [permanent lease]. 


Ss. 

185A,186 



198 


HINDU LAW. 


Ss. 

186-188 


time ©f fixing it, in lieu of giving the estate the benefit of an 
augmentation of a variable rent from time to time, is 
a breach of duty on the part of the widow {y). Such a lease, 
however, is not void, but voidable at the option of the 
reversioners. It does not come to an end at the death of the 
widow ; it is vahd until it is set aside ( 2 ). A permanent lease 
is not justified even if it is granted to improve the land. The 
expression “ for the benefit of the estate ” has reference to 
the preservation and protection of the estate, and not to its 
improvement (a). See s. 243A. 

Baiyaii aettlement by a widow . — A widow may make a raiyati settlement provided 
the transaction is fair and bona fide (5). 

If a widow is appointed as a Lumbardar then no co-sharer can challenge a lease 
of Khudkasta lands by her unless he can prove that it was not an act of ordinary village 
management. A rever.sioner is not in a better position (c). 

187. Alienation by widow with leave df Court under the 
Indian Succession Act, 1925, s. 307. — Where a widow or 
other lunited heir obtains letters of administration, and then 
obtains leave from the Court under s. 307 of the Indian 
Succession Act, 1925, to alienate the property, she can confer 
on the alienee an absolute title to the property irrespective 
of necessity or of the consent of reversioners. The reason is 
that the alienee is entitled to trust to the order of the Court 
and he is not bound to go behind it (d). 

188. Equities on setting aside alienations by widow.— 
Where an alienation made % a widow or other limited heir 
without legal necessity, and without the consent of the next 
reversioners, is set aside, the question arises whether the 
alienation should be set aside in its entirety or upon terms and 
conditions. The following is the result of the decisions on the 
subject : — 

(1) It has been held in Bombay that when a sale is set 
aside, the Court may direct, as a condition of setting aside the 
sale, the return of the purchase money if the money is still 
intact at the death of the widow (e). But see sub-sec. (5). 


(y) Shibessouree Denia v. MothooranatJi Acharjo 

(18b9) 13 II I. A. 270 [permanent lease by a 
Molmnt] ; liaghubir Singh v. Jethu (1923) 
2 Pat. 171, 70 I.C. 290, ('23) A.P. 130. 

(z) Modhu Sudan v. Booke (1897) 2.3 Cal. 1. 24 

I.A. 164 ; Bijoy Gopal v. Krishna (1907) 
34 Cal. 329, 34 I.A. 87 ; Upendra Eishore 
V. Noho Kishore (1918) 23 C.W.N. 84, 
48 I.C. 993, (’19) A. C. 746. 

(a) Oanap v. Subbi (1908) 32 Born. 577. The 
decision in Dayamnni v. Srinibash (1906) 
33 Cal. 842, turned on the special facts of 


the case. 

(&) Bisiranath v. Itam Prasad (1931) 10 Pat. 572, 
133 I C 673, (’31) A.P. 389. 

(c) Gfiasjram v. CJirOhari (1942) Kagpur 680, 

195, I.C. 003 (’42) A. N. 306. 

(d) Eamikhya v. Ran (Jhum (3899) 26 Cal. 607 ; 

Annada v. Atul (1919) 23 C.W N. 1045, 
54 I.C. 107 ; Bajam Kania v. The 
Secretary of State (1919) 23 C.W.N. 052, 
521.0.309, (’19) A. C. 2. 

(e) Someshwar v .Someshwar (1923) 47 Bom. 1, 

07 I.C. 058, (’23) A. B. 16. 



ALIENATION BY WIDOW. 


199 


(2) It lias been lield by tbe Judicial Committee that 
■where a Hindu widow sells property inherited by her from her 
husband, without legal necessity, and the purchaser beheves in 
good faith that he is absolutely entitled thereto and makes 
any improvement in the property, the Court may in setting 
aside the sale direct the reversioner to pay to the purchaser 
the amount expended by him on such improvements as have 
enhanced the market value of the property (/). The case was 
one from Lahore where the Transfer of Property Act, 1882, 
does not apply, but the decision, it seems, would have been the 
same even if the case had been one under the Acts. 
See sub-sec. (5). 


(3) The principle of the above decision was followed by 
the High Court of Bombay in a case of a mortgage by a ■widow 
without legal necessity {g), though in an earlier case the Court 
refused to allow the mortgagee even to remove the structure 
erected by him on the land after it was destroyed by 
floods [h). In Allahabad, it has been held that whether the , 
case be one of mortgage (z), lease (J), or gift (Ic), if the transfer 
is not one for legal necessity, the transferee is not entitled to 
any compensation for the improvements made by him even 
if the improvements were such as have enhanced the market 
value of the property, the ground of the decision being 
that s. 51 of the Transfer of Property Act, 1882, does not 
apply to alienations made by a Hindu widow without legal 
necessity. That section, it has been said, “ applies only to 
the case of a transferee of the immoveable property who makes 
any improvement in the property, believing in good faith that 
he is absolutely entitled thereto. But in the case of a Hindu 
widow a person dealing -with her would ordinarily know that 


(/) Kidar Nath v. Mathu Mai (1913) 40 Cal. 
555, 18 I.C. 946 (P.C.) [cost of erection 
of temple not allowed but purchaser 
allowed to remove the materials]. See 
also Jlaja Hai Bhagwal v. Bam Balan 
(1021) 20 All. L.J. 26, 65 I.C. 60, (’22) 
A.PC. 91 [P.C.], where there was partial 
necessity for the sale. 

(ff) Shiddappa v. Panduraitg (1923) 47 Bom. 
090, 72 I.C. 626, ('23) A.B. 385. But see 
Ramappa v. Yellappa (1928) 52 Bom. 307, 
109 I.C. 532, (’28) A.B. 150. 


I {k) Vrijbhukandas v. Baijaram (1908) 32 Bom, 


(t) Hansraj v. Hiwomjtvat jSonmi (1922) 44 All. 
665, 67 I.C. 314, (’22) A. A. 194 [mortgagee 
allowed to remove structures], 

(j) Raimp v. Gopi (1925) 47 All. 430, 432, 87 
I.C, 44, ('25) A.A. 261. 

ik) Raghunandan v. Tuhi Ram (1924) 46 All. 
38, 75 I.C. 244, (*24) A.A. 315. 


S.188 



200 


HINDU LAW. 


Ss. 

188, 189 


slie has only a life-interest and he can reasonably be expected 
to make inquiries as to whether there was any legal necessity 
for the mortgage and whether the widow had any right to 
make the transfer. The mortgagee cannot be said here to 
have acted in good faith in dealing with such a widow so as 
to affect more than her life interest ” {1). But see sub-sec. (5). 

(4) The question whether an alienee from a Hindu 
widow is entitled to compensation for money spent upon the 
property cannot be raised in a declaratory suit by reversioners 
during the lifetime of the widow. It is premature to raise it in 
such a suit. It can only be raised after the widow’s death 
in a suit by reversioners for possession (m). 

(5) It has been recently held by the Judicial Conamittee 
that where a gift is made by a widow to a sti^nger of property 
inherited by her from her husband, and the donee sells the 
property, and the purchaser effects improvements believing 
in good faith that he was the owner, he is entitled, if the gift 
is set aside, to the alternative rights mentioned in sec. 51 of the 
Transfer of property Act, 1882, namely, to be paid by the 
plaintiff at whose instance the gift is set aside the value of the 
improvements, or to require the plaintiff to sell his interest 
in the property to him (n). 

189. Purchase money applied by widow in part only to 
pm-poses of legal necessity. — Oases frequently arise in which 
property inherited by a widow from her husband is sold by her 
for legal necessity, but the whole of the price is not proved 
to have been ajjplied to purposes of necessity, and the sale is 
challenged by the reversioners on that ground. In such 
cases, if the sale itself is justified by legal necessity, and the 
purchaser pays a fair price for the property sold, and acts in 
good faith and after due inquiry as to the necessity for tbe 
sale, the mere fact that part of the price is not proved to have 
been applied to purposes of necessity, would not invalidate 
the sale, the purchaser not being bound to see to the application 
of the price. If the above conditions are satisfied, the sale 
must be upheld unconditionally, whether the part not proved 
to have been applied to purposes of legal necessity is 

{1) (1922) 44 All. OOu, 067, 07 I.C. 314, (’22) I («) yurayanaBWamxAii!j<ir\.RamaAyyar{\^ZQ) 

A.A. 194, 57 I. A. 305. r>3 Mad. GO, 128 I.C. 201, 

(m) ATorain V. (Jopai Din-i (1909) 30 Cal. 780, (’30) A. PC. 297. 

30 I. A. 103, 3 I.C. 382. 1 



ALIENATION BY WIDOW. 


201 


considerable or small (o). It is wrong in such cases to draw a 
distinction, as was done by the Allahabad High Court, between 
the case where the part not proved to have been applied to 
purposes of necessity is considerable and the case where such 
part is small, and in the former case to pass a decree setting 
aside the sale conditionally upon the reversioner paying to the 
purchaser the part proved to have been applied to purposes 
of necessity and in the latter case to pass a decree upholding 
the sale conditionally upon the purchaser paying to the rever- 
sioners the price not proved to have been so applied (p). Where 
the sale was only partially j ustified by legal necessity, the sale 
may be set aside conditionally on the reversioner paying to the 
purchaser that portion of the consideration money which was 
justified by legal necessity {q). See sec. 245 and notes where 
the matter is fully discussed. 

The underlying principle is that if the conditions stated in the section are complied 
with, the transaction is not vitiated by some excess of the widow’s powers as rigorously 
construed. 

The leading case on the subject of alienations for necessity is Hanooman Persaud v. 
Mussamat Babooee (r), decided by the Judicial Committee in 1856. The question in 
that case was as to the extent of the power of the mother as manager of the estate of 
her minor eon to mortgage the estate. The principles laid down in that case [see note (1) 
to B. 242] have been applied also to alienations by a Hindu widow of property inherited 
by her from her husband and to alienations of joint family property by the manager of a 
joint Hindu family. 

The law as stated in the present section was laid down by the Judicial Committee 
in Suraj Bhan Sindh v. Sah Chain Sukh (s), following the decision of the some tribunal 
in Kriahria Das v. Nathu Ram ((). The latter case was one of sale by the manager of a 
joint Hindu family, but the same principle applies to a sale by a widow. 


(o) Suraj Bhan Singh y. Sah Chain Sukh (1928) 
32 C.W.N. 117, 105 I.C. 257, (’27) A.PC. 
244 [price 3ls. 10,000— lls. 1,022 not 
proved to have been applied to purposes of 
necessity — sale upheld unconditionally!, 
following: Kri^?ina Das v. Iiu7n{1927) 

54 I. A. 79, 49 All. 149, 100 I.C. 130, (’27) 
A.PC. 37 (.1 case of sale by manager — price 
B-'*. 3,500 — K.S. 500 not proved to have 
been applied to purposes of iiccessity — 
sale uplicld unconditionally] ; Bam Copal 
Qhose V. Bnllodeh Bose (1804) AV.Il. (Sp. 
No.) 385 [one-tliird of the price not proved 
to have been applied to purposes of 
necessity — sale upheld unconditionally] ; 
LuchmeedhuT Singh v. Ekbal Ali (3807) 
8 W.B. 75 [price Ils.05,000~lls. 14,000 
not proved to have been applied, etc.— 
sale upheld unconditionally] ; Chatra- 
naragan v, Uba Kunwari ^808) 5 

Deng. L 31. 201 [price lls. 995-— Its. 321 
not proved to have been applied, etc. — 
bale upheld unconditionally] ; Kamika- 
vrasad v. (1870) 5 Deng. L.ll. 508 

[sale upheld unconditionally] ; Felaram v. 
Bagalanand (1910) 14 U.W.N. 895, 6 I.C. 
207 (permanent lease on a selami of 
Rs.l25 — Its. 25 not proved to liave been 
applied, etc. — ^leasc uplicld uncondition- 
ally] ; Mcdai Dalavoi v. Naxnar 'I'evan 
(1922) 27 C.W.N. 305, 74 I.C. 004, (’22) 


A.rC. 307 [price 3U.5,300— Its. 712 not 
proved to have been applied, etc. — sale 
uphold unconditionallv] ; Lai v. 

Bar Bhagivan (1921) 2 Lah. 357, 06 I.C. 
362, ('22) A.L. 317 [sale upheld uncondi- 
tionally] ; Bal Krishna v. llira Lai (1919) 
41 All. 338, 50 I.C. 74, (’10) A.A. 406 
[price K**. 19,500 — Its. 11, 725 not proved 
to have been applied, etc. — sale upheld 
unconditionally]. 

ip) Jainarainv. Bhagivan {1022) 44 All. 683, ('22) 
A.A, 321 ; Sanmiikh v. Jagarnath (1924) 46 
All. 531, 83 I.C. 838, (’24) A.A. 708; 
Daulat V. (1025) 47 All. 355, 86 

I.C 91, (’25) A.A. 324 ; Gobind Singh v. 
Baldro Singh (1003) 25 All. 330 ; Ram Dei 
V, Jafar (1905) 27 All. 494 ; Dtvarka 
Ifdwiv. Jhulai (1923) 45 All. 429, 72 I.C. 
134, (’23) A.A. 248 ; /fanwiiand ImI v. 
Damodardns (1941) All. 820, 199 I.C. 
369, (’42) A.A. 110. 

{q) Shanti Kumar Pul v. ^^uk^lndlat ^fanda^ 
(1935) 62 Cal. 204, 156 I.C. 209, (’35) A.C. 
20 , 

(r) (1856) 6 M.I.A. 303 ; 2'trbeni Sahai v. 

Bamsmgh (1938) 13 Luck. 230, 167 1.0. 
925, (’37)A.O. 301. 

(s) (1928) 32 C.W.N. 117, 105 I.C. 257. (*27) 

A.VC. 244. 

(0 (1027) 54 I.A. 79. 48 All. 149, 100 I.C. 130, 
(•27) A.PC. 39, 


S.189 



202 


HINDU LAW. 


Ss. 

189491 


There is a series of cases decided by the Judicial Committee in which a small part 
of the price was proTed to Imve been applied to purposes of legal necessity, and the sale 
was set aside on the ground that it was not substantially for legal necessity. The 
principles to be derived from these cases may be stated thus. If a sale by a Hindu widow 
of property inherited by her from her husband is sought to be set aside by the reversioner, 
and part of the price is proved to have been applied to purposes of necessity, then if 
the suit is brought during the widow's lifetime, the decree should be one declaring the 
right of the reversioner to the property on the death of the widow, and declaring also 
that the purchaser is entitled to a charge on the property only for the amount proved 
'■ to have been so applied (u). If the suit is brought after the widow’s death, the decree 
shoiild be one setting aside the sale and directing the purchaser to deliver possession 
to the reversioner and to pay to liini the balance of mesne profits from the date of the 
; widow’s death after deducting therefrom the amount proved to have been applied to 
* purposes of necessity with interest thereon (v). But if the amount proved to have been 
: applied to purposes of necessity exceeds the amount of mesne profits, the decree should 
be one setting aside the sale and for possession conditionally upon the reversioner paying 
to the purchaser the difference between the two sums (w). 

A widow is not always bound to sell exactly for the amount for which there is legal 
necessity, and the Courts have to see in each case whether, ha'Jing regard to the circum- 
stances, the alienation was a proper one. It would manifestlj- be impossible and possibly 
prejudicial to the interest of the estate if the widow were held to be bound in every 
instance to sell the property for payment of a debt due from her husband for exactly 
the sum due to the creditor (x). See notes to sec. 181D. 

190. Election by reversioner. — (2) An alienation by a 
wido'w of ber husband’s estate ■without legal necessity or an 
invalid surrender is not altogether void, but only voidable by 
the next reversioner. He may affirm it, or he may treat it as 
a nullity [s. 185]. If he elects to affirm it, he and transferees 
from him will be precluded from exercising his right to avoid 
it and from questioning the transaction {y). The election 
may be made after the reversion has fallen into possession, 
or even before (z) . 


(2) The above rule applies not only to male but also to 
female reversioners {a). 


191. iilienation made by ■widow with consent of rever- 
sioner whether binding on him and actual reversioner. — (2) A 
reversioner, whether a male or female (6), who consents 


(j<) Mahomed ^ihaimool v. Sheivnl-ram (1874) 
14 Beiig. L.H. 226, 2 I.A. 7. 

(y) Bepxd]} Coniiuw5^07i€» o/ Khffi v. Khanjan 

Singh (1007) 20 All. 331. 34 I.A. 72. See 
also Collector of Mn.svlipataiii v Ca^aly 
Vencula (1861) 8 Bf I.A. 520, 555-556', 
J)oorqa Parsad v. Voorga Konuari (1878) 
4 Cal. 100, 204, 5 I.A. 149. 

(to) Bhagv-'ol Bayal v, BehvBayal (1905) 35 Cal. 
420, 429-430, 35 I A. 48. 

(z) isaman Lai v. Bar Bhaqi'an (1021) 2 Lah. 

357, GG I.C. 362, (’22) A L. 317 ; Bal 
Kri-’^hna v. Jliut Lai (1919) 41 All, 338, 
50 I.C. 74, (’19) A. A. 400; Pelaram w 
Bagalnnond (1910) 14 C.IV.N. 895, 0 I.C. 
207. 


(y) Jiamgouda \ Bhamaheb (1927) 54 I.A. 396, 

402. 52 Bom. 1, 7, 105 I.C. 70S, (’27) 
A.PC. 227 ; Ham Bharose v. Bhagican 
Dm (1944) 19 Luck. 37. 

(z) Bangastvami v. ^’achiappa (1919) 46 1 A. 

72, 42 Mad. 523, 50 I.C. 488, (’18) A.PC. 
190 ; AH'aii'a t. Smjad Khan (1927) 51 
Bom. 475, 4S5-48G. 102 I C. 232, (’27) 
A.B. 200 ; Putan Bet v, Suntoo Prasad 
(1944) Luck. 557. 

(«) (1927) 51 Bom 473, 48'>'48G, 102 I.C. 232, 
C27) A.B. 2G0. supra; Palan Dei v. 
Santoo Prasad (1944) Luck. 557. 

(M (1927) 51 Bom. 475, 102 I.C. 232, (’27) 
A.B. 2G0, supra; Patan Dei v. Santoo 
Prasad (1944) Luck, 557, 



ALIENATION MADE BY WIDOW. 


203 


to an alienation by a widow or other limited heir made 
without legal necessity, or to an invalid surrender, and trans- 
ferees from him, are precluded from disputing the validity of 
the alienation (c) [ills, (a) and (b)], though he may have 
received no consideration for his consent (d). It is immaterial 
that the alienation is by way of gift [see ills, (a) and (b)]. 

But if the actual reversioner at the widow’s death be a 
different person, he is not precluded from questioning the 
alienation, though even as regards him the alienation will stand 
good unless he proves that the transaction was one without legal 
necessity [s. 183 (f)]. The actual reversioner, even if he be 
the son of the consenting reversioner, is not bound by his 
father’s consent (e), unless the consent was given for a considera- 
tion and the sou enjoyed the benefit of it (/) [ill. (c)]. 
See sec. 192. 

(2) A reversioner who takes from an alienee from a 
widow a mortgage of the alienated property is not on that 
ground precluded from questioning the alienation on the 
widow’s death {g) [ill. (d)]. 

(a) A Hindu widow executes a deed of gift of a portion of her husband’s property 
to D, F who is then the nearest reversioner joins in the deed. After the widow’s death 
Ft alleging that the gift is invalid [a. 183 (4)] sues D for possession of the property. F 
having consented to the gift is estopped from disputing the validity of the gift : Baeappa 
T. Fahirappa (1922) 46 Bom. 292, 64 I.C. 214, (’22) A.B. 102 ; Akkawa y. Sayad Khan 
(1927) 51 Bom. 475, 102 I.C. 232, (’27) A.B, 260. 

(b) A dies leaving a mother M and two male relations F and O who are then the 
nearest reversioners. On .4’8 death M succeeds to the estate of her son. M executes 
a deed of gift of a portion of her son’s property in favour of a family idol. F joins in 
the deed of gift. 0 sues M and the donee for a declaration that the alienation is invalid, 


(c) Basappa v. Fakirappa (1922) 40 Bom, 

292, 64 I.C. 214, (’22) A.B. 102, explaining 
Bai Farvali v. Bayabhai (1920) 44 Bom. 
488, 58 I.C. 260,C20) A.B. 355 ; Bhausah<A 
V. Ramgauda (1023) 25 Bom. L.R. 813, 
70 I.C. 937, (’23) A.B. 471 ; FaUh Singh 
V. Thakar Rukmini (1923) 45 All. 339, 
72 I.C. 8, (’23) A.A. 387 (T'.B.); Akkawa 
V. Sayad Khan, supra ; Bobu Singh v, 
liameshicar Baksh (1932) 7 Luck. 300, 135 
I.C, 881, (’32) A.O. 90 ; Jiioan Singh v. 
Mistri Lai (1896) 18 AU. 146, 23 I.A. 1 
[transfer confined to widow’s estate) ; 
Jltip Karain v. Gopal Devi (1909) 36 Cal. 
780, 36 I.A. 103, 3 I.C. 382 (transfer 
confined to widow’s estate) ; Baturao v. 
Tukaram (1931) 33 Bom. L.B. 236, 131 
I.C. 660, (’31) A,B. 208 ; Ram Bkarose 
y. Bhagwan Devi (1944) 19 Luck. 37. 

(d) RamakoUaya v. Viraraghacayija (1929) 52 

Mad. 556, 119 I.C. 156, (’29) A.M. 502. 

Co) Rangasxoami v. Nachiappa (1919) 42 Mad. 


523, 535, 530, 46 I.A. 72, 83, 84, 50 I.C. 
498, ('18) A.PC. 196. See also Ramyou^ 
V. Bhausaheb (1927) 54 I.A. 396, 402'403 
52 Bom. 1, 7, 107 I.C. 708, (’27) A.PC. 
227, where part of the alienation was 
favour of the father ; Thakur Prtisad v. 
Musammat Dipa Kuer (1931) 10 Pat. 352 
134 I.C. 129,-(’31) A.P. 452. In Bahurao 
V. Tukaram (1031) S3 Bom. L.R. 285 
131 I.C. 660, (’31) A.B. 208, the plain- 
tiffs who daimed to set aside a gift 
to which their step-mother had consented 
were not the leverslonery heire of the 
deceased owner ; Devendranath Sarma 
V. Nagendranath DuU (1933) 60 Cal. 1158. 
140 I.C. 522, (’S3) A.C. 900. 

(/) Vinayak v. Govind (1901) 25 Bom. 129, 136, 
141. See also Bahadur Singh v. Bam 
Bahadur (1923) 45 All. 277, 71 I.C. 406. 
(’23) A.A. 204. 

(^) 42MAd. 523, 537-539, 46 I.A. 72, 86-87. 60 
I.C. 498, (*18) A.PC. 196, supra. 


S. 191 




204 


HINDU LAW. 


S. 191 and a decree is passed declaring that the gift is void beyond M's lifetime. After Jl/’s 
death F sues the donee for possession of his one-half share in the property comprised 
in the gift. F is bound by his consent, and he is precluded from challenging the validity 
of the gift, though the gift was declared invalid in G'a suit and though G would be entitled 
to recover his one-half share from the donee : Fateh Singh v. Thahnr liukmini (1923) 
46 AU. 339, 72 I.C. 8, (’23) A.A. 387 [F.B.]. 

(o) A Hindu dies leaving a widow B, a sister B, and B's son V. B sells a portion 
of her husband’s property with F’s consent. The sale is effected to obtain necessary 
funds for V’b marriage. V then marries, and a son 0 is born to him. After the sale 
B dies, then Y, and then B, the widow. After B’a death, G, who is then the actual 
reversioner, sues the purchaser for possession of the property sold to him. It is proved 
that there was no legal necessity for the sale. It is not proved that B consented to the 
sale. Upon these facts the High Court of Bombay held that G was bound by the consent 
of his father V. Banade, J., said : “ In the course of the arguments I suggested to the 
respondent’s [plaintiff’s] pleader what would have been the result if Radhabai had, 
instead of spending the money on Venkatesh’s marriage, used it for building a house for 
Venkatesh, and plaintiff enjoyed the nse of the house after Vcnkatesh. In such a case 
as this, would it have been open to plaintiff to question t^e sale by Radhabai and 
retain the house she built for Venkatesh out of the proceeds ? There can be only one 
answer to such a question.” Sir Lawrence Jenkins said : “ The occasion for the sale 
no doubt was to supply the funds required for Venkatesh’s marriage, but then it was 
this very marriage to which the plaintiff owed his being, and without which he would 
not have been in existence to make this claim ” : Vinayak v. Govind (1901) 25 Bom. 129, 
136, 141. Seo in this connection Bahadur Singh v. Bam Bahadur (1923) 45 All. 277, 71 
I.C. 405, (’23) A.A. 204. 

(d) A dies leaving a mother M, a paternal cousin B, and a remoter paternal cousin 
F. On A’s death M succeeds to his estate as his heir. M executes a deed of gift of a 
portion of her son’s property to B who is then the nearest reversioner. [The gift is there- 
fore bad in law s. 183 (4)]. Afterwards B dies and his estate vests in X. X mortgages 
to P the property given by M to B. Then M dies. After ill’s death P, who is then 
the actual reversioner, claims the piroperty given by 31 to B and mortgaged by X to P. 
P is entitled to recover the property. The fact that he took a mortgage of the property 
does not preclude him from claiming it as a reversioner. “ At the time of the mortgage 
the plaintiff [P] did not know whether he would ever be such a reversioner in fact as 
would give him a practical interest to quarrel with the deed of gift” : Bangaswami v. 
Nachiappa (1919) 46 I.A. 72, 87, 42 Mad. 523, 50 I.C. 498, (’18) A.PC. 196, with facts 
simplified. 

In a recent Allahabad case it was held that if the nearest reversioner at the time of 
an alienation made by a Hindu widow of her husband’s property assents to the alienation 
neither he nor any one claiming through him [in that case, the reversioner's son] can 
afterwards di.spute its validity ih). This ruling, it is submitted, proceeds upon a mis- 
apprehension of a passage in the judgment of the Privy Council in Bajrangi’s case (j) 
which is as follows ; — ■“ The appellants [plaintiffs] who claim through Matadin Singh and 
Baijnath Singh must be held bound by the consent of their fathers.” Bajrangi'a case 
was considered by their Lordships in Bangaswami'a case {j). Referring to the above 
passage their Lordships said : — “ It is true that the concluding words of the judgment 
as to the sons being bound by the consent of the fathers, ‘ through whom they claim’ 
could be read, as indeed they have been read, as indicating that consent operated propria 
vigore. But two remarks fall to be made. First, the idea of an eventual reversioner 

ih) Mahadeo PruHod v. Mcitra Prmad (1922) 44 
All. 44, 53, 03 I C. 721, (’22) A X. 207. 

(i) (1907) 30 All. 1, 33 I.A. 1, 10. 


(J) (1919) 42 Mad. 523, 535-530, 40 I.A. 72, 
83-84, 50 I C. 408, ('18) A.l'C. 106. 



COMPROMISE BY WIDOW. 


205 


claiming through any one who went before him is opposed both to principle and authority. Ss. 

It is opposed to principle because, as already stated, there is no vested right till the death. J92 

It is opjiosed to authority : Bahadur Singh v. Moltar Singh (k) The judgment 

was only meant to settle the point at issue — ^namely, the comparative merits of the 
Allahabad and Calcutta ruling.” Bajrangi’a case, therefore, is not an authority for the 
proposition that the consent of the next reversioner to an alienation binds his son or 
any other person claiming through him. 

192. Compromise and family arrangement by widow— 
reversioner party to and benefiting by the transaction. — 

Where a widow or other limited heir enters into a family 
arrangement (I) [ills, (a) and (b)], or into a compromise which 
involves an alienation, of the estate (m) [ill. (c)], the reversioner 
who has been a party to and has benefited by the transaction 
is precluded from questioning the alienation ; and so are his 
descendants (n). There is no question in a case of this kind 
of a transfer of spes suceessionis by the reversioner. The 
reversioner, being a party to the transaction cannot 
repudiate it. 

In the case of a family arrangement it is not necessary 
in order to bind the reversioner that there should have been any 
previous dispute as to the rights of the parties (o). 


lllusirations. 


(a) A Hindu governed by the Benares school of Hindu law dies leaving a widow 
and three daughters, D, M and H, and grandsons by D and U. The widow claims an 
absolute title to certain properties which the daughters allege belonged to their father. 
An arrangement is then come to between the widow and the daughters whereby certain 
properties are given to the grandsons and certain other properties are divided among 
the daughters as their absolute propert}'. The daughters and grandsons enter into im- 
mediate possession of their lots, and they deal with their shares as absolute owners. 
H executes a mortgage of her share. M sells one of the properties which came to her 
share to R. After the death of the widow and of H and My D brings a suit against R 
for recovery of possession of the property sold to him by My alleging that the property 
belonged to her father, and that on the death of her mother and sisters she became the 
sole heir of her father and was entitled to possession. Upon these facts it was held by 
their Lordships of the Privy Council that D who was a party to the arrangement could 
not be allowed to repudiate it and impeach a sale made on the faith of it. Their Lord- 
ships said : “ Further, from the time of the arrangement of 1875 until the commencement 
of this suit, that is to say, for a period of 38 years, all the parties to the arrangement, 
including the plaintiff, dealt aa absolute owners with the ‘property allotted to them ; and 
to this, with trifling exceptions, no objection was taken by the other parties to the division. 


(A) (1901) 29 I.A. 1, 24 All. 94. 

(0 Mmammat Bardei y. Bhagwan Singh (1919) 
24 C.W.N. 105, 50 I.C. 812, ('19) A.PC. 
27 ; Pulliah Cltetti v, Varadarajuln 
(1908) 31 Mad, 474 ; Baraii Lai v. Salil 
/?gw( 1916) 38 All. 107, 31 I.C. 919, (’15) 
A. A. 441 ; Chahlu v. Parmal (1919) 41 All 
611, 51 I.C. 919, {’19) A. A. 371 ; Ramjouda 
V. Bhausaheb (1927) 54 I.A. 396, 52 Bora. 
1, 105 I.C. 708, (’27) A. PC. 227. 


(;») Kanhai Lai v. Bnj Lai (1918) 45 I.A. 118, 
40 All. 487, 47 I.C. 207, (’18) A. PC. 70 

(n) Bamgouila v. Bhausaheb (1927) 54 I.A. 396, 

52 Bom. 1, 105 I.C. 708, (’27) A.PC. 227. 
Bindeshri Tewan v. Lakhan Teivnn (1941) 
All. 763, 193 I.C. 18, (’42)A.A.12, (1941) 
A.L.J. 581. 

(o) Pokhar Singh v. Dulari (1930) 52 All, 710, 

125 I.C. 1, (’30) A.A. 687. 



206 


HINDU LAW. 


192 


In these circumstances the true inference appears to their Lordships to be that, at a time 
Avhen Pato [that is, the widow] was claiming to be absolutely entitled to the property 
in her possession, and when her rights and those of her daughters were in doubt, the 
members of the family agreed and arranged among themselves that the whole property 
should be at once divided among the daughters and their sons then living, the mother 
surrendering her claims and each daughter accepting the property allotted to her in 
severalty in lieu of the undivided share in the whole estate which would have devolved 
upon her on her mother's death and abandoning her right of survivorship on the death 
of either of her sisters. Whether this arrangement is binding on the grandsons cannot 
be defermined in this suit, and on that question their Lordships express no opinion. But 
the plaintiff at all events ts bound by her own agreement ; and in view of this fact, and 
of the favour shown by the Courts to family arrangements and the long period of time 
which has elapsed since the arrangement was made, she cannot now be allowed to 
repudiate the agreement and to impeach a sale which was made, upon the faith of it” : 
Aliissammat Hardei v. Bhagwan Sinyh (1910) 24 C.W.N. 105, 109, 50 I.C. 812, (’19) 
A. PC. 27. 

(b) A Hindu died in 1846, leaving a widow, who survived until 1912, and a daughter. 
On the death of the widow A had succeeded to the estate, 1868 the widow had 
alienated nearly the w'hole property by three deeds executed and registered on the same 
day. By the first deed she gave a property to her brother, by another she sold half 
of another property to A, and by the third she sold the other half of that property to 
her son>in-law. The signature on each of tlie deeds was attested by the two other alienees > 
A, who survived the widow for six years, did not seek to set aside any of the alienations. 
After his death his son and grandsons brought a suit to recover the whole property. 
It was held that the three deeds were to be regarded as forming one transaction entered 
into by all the persons interested in the properties, and that A, and consequently the 
plaintiffs, were precluded from disputing the two alienations now sought to be set aside, 
the alienations being by the widow were avoidable, not void, and A being precluded 
from questioning them, it was not necessary to consider whether he could deal validly ; 
with his reversionary interest. In the judgment their Lordships said ; “ Their Lord- 
ships consider that the decision of this case depends upon how far the three documents 
can be taken as separate and independent, or so connected as to form one transaction 
. . . Their Lordships conclude that all the circumstances strongly point to the three 
documents being part and parcel of one transaction by which a disposition was made 
of [the husband’s] estate such as was likely to prevent disputes in the future and therefore 
in the best interests of all rhe parties. The three deeds appear thus to be inseparably 
connected together and in that view A not only consented to the sale to [the son-in-law 
and the gift to [her brother] but these dispositions formed parts of the same transaction 
by which he himself acquired a part of the estate. It was argued that ,4’s contingent 
interest as a remote reversioner could not be validly sold by him, as it was a mere 8j>ea 
successionist and an agreement to sell such interest would also be void in law. It is not 
necessary to consider that question, because he did not in fact either sell or agree to sell 
his reversionary interest. It is settled law that an alienation by a widow in excess of her 
powers is not altogether void but only voidable by the reversioners, who may either 
singly or as a body be precluded from exercising their right to avoid it either by express 
ratification or by acts which treat it as vabd or binding. If some person other than 
A had been at the death of [the widow] the nearest heir of her husband, it might have 
been open to him to question all or any of the three deeds, but A himself being a party 
to and benefiting by the transaction evidenced thereby was precluded from, questioning 
any part of it. Nor is it other than a most notable circumstance that he did not, after 
{the widow’s] death, easy to do so” : Ramgouda v. Bhausaheb (1927) 54 I.A. 396, 401- 
402. 52 Bom 1, 105 I.C. 708, r27) A.PC. 227. 



COMPROMISE BY WIDOW. 


207 


(o) A and B are two Hindu brothers governed by the Benares school of Hindu law. 
A dies leaving a widow P. On A’n death B enters into possession of the family pro. 
perty, claiming it by right of survivorahip. P contends that her husband A was separate 
from B, and she adopts K to her husband. K is P’s husband’s sister's son. B dies leaving 
a widow B, a daughter, and K. On Rs death, his estate devolves on bis widow B. On 
the widow’s death it would pass to the daughter as a Umited heir, and on her death, 
K, if his adoption is valid, would succeed as a reversioner. The daughter is the next or 
presumptive reversioner, and E is a remote or contingent reversioner. 

B’s widow, B, institutes two suits, one for a declaration that her husband was the 
owner of the entire joint family property, and another for a declaration that K's adoption 
is invalid. A compromise is then entered into by which the property is divided between 
B'a widow, B, her daughter and A’a widow, P, and K’b adoption is recognised. P tranafera 
the property which ahe got under the coinpromiae to K as her adopted aon, K ia a party to 
the compromiae. 

Then the daughter dies, and then the widow, B. On the death of B, K claims B’s 
property as B’s reversionary heir. Upon these facts it was held by their Lordships 
of the Privj' Council tha* K was precluded from claiming as a reversioner. Their Lord- 
ships said : “It was also contended on his behalf that Eanhai Lai in 1892, whatever 
his intention may have been, was not in law competent to convey or rebnquish any 
future possible right as a reversioner, and as an authority in support of that contention the 
decision of the High Court at Bombay in Sumauddin Qoolam Huaein v. Abdul Huaein 
Kalimuddin (p) was relied upon. That decision is not in point. There is no question 
here of a conveyance of, or of an agreement to convey any future right or expectancy, 
or of an agreement to relinquish, any future right or expectancy. The question here ia, 
whether Kanhai Lai did not by hia acta in 1892 debar himself from now claiming as a re- 
versioner. . . Kanhai Lai waa a party to that compromiae. He was one of those whose 
claims to the family property, or to shares in it, induced Ram Dei, against her omi 
interests and those of her daughter and greatly to her ovm detriment, to alter her 
position by agreeing to the compromise, and under that compromiae he obtained a 
substantial benefit, which he has hitherto enjoyed. In their Lordships’ opinion he is bound 
by it, and cannot now claim as a reversioner’’ : Kanhai Lai v. Brij Lai (1918) 45 I.A. 
118, 123, 40 All. 487, 47 I.C. 207, (’18) A.PC. 70. 

Beversioner’s son, whether compromise binding on him. — It has been held by the High 
Court of Allahabad, that where a reversioner is a part}' to a compromise and obtains some 
property under the compromise, his son, if he enters into possession of the property after 
his father's death and enjoys possession thereof in succession to his father, is precluded 
from repudiating the compromise and from claiming as a reversioner (y). See also ill. (o) 
above. 

193. Compromise and family arrangement by widow— rever- 
sioner not a party— binding on reversioner, though not a party, if 
transaction bona fide. — [1 ) A compromise in the nature of a 
family arrangement entered into by a widow or other limited 
heir binds the reversioners, though they may not be parties 
thereto, provided it amounts to a honafide settlement of disputes 

(j) Bahadur Sxwjh v. Bam JiahtuBir (19"3) 45 
All, 277, 71 I C. 405, (’23) A.A. 204. 


Ss. 

132,193 


ty>) (1907) 31 Bom. 105. 



208 


HINDU LAW. 


S.193 in respect of the estate (r) [ills, (a) and (b)]. Even if it is not 
in the nature of a family arrangement, a compromise entered 
into by her bomfde for the benefit of the estate, and not for her 
personal advantage, binds the reversioners quite as much as 
a decree against her after litigation, though they may not be 
parties to the transaction (s) [ill. (c)]. In either case the fact 
that the compromise involves an alienation of the estate does 
not affect its validity. An alienation which is the result of a 
compromise, or the mode by which a compromise is carried into 
effect, falls within the power of the holder of a Hindu woman’s 
estate either as being an alienation which is to be deemed to be 
induced by necessity, or as being in a parallel position to an 
alienation induced by necessity (t). 

(2) An alienation by way of compromise entered into 
between a limited owner and a person who had no borm fide 
claim at all to the estate when the compromise was entered 
into does not bind the reversioners (m). AVhere a presumptive 
reversioner sued to set aside a gift by a widow and a compromise 
was entered into by which a portion of the estate was trans- 
ferred to him, it was held that the compromise was not binding 
on the actual reversioner ( 1 )). See sec. 182, ill. (2). 


lUustratmis. 

fa) A has a son B who is joint Avith him. A adopts the Mahomedan faith, but the 
management of the joint property remains with him. B then dies leaving a daughter 
B. Then A dies leaving his grand-daughter, D, and a son S by a predeceased daughtei 
-Dl. On ^’s death D claims the w’hole of the joint family property on the ground that A'b 


(r) Khiinni Lai v, Gobind Krishna (1911) 33 All. 
350, 3& I. A. 87, 10 l.C. 477 ; Hiran Biti v. 
Sohan Bibi (1914) 18 C.W.K 929. 24 I C. 
309, (’14) A, PC, 44 ; Upendra Nath v. 
BincUfiri Prosad (1915) 20 C.W.N. 210, 
32 l.C. 4C8, ('16) A.C. 843; Bihari Lai 
V. Baud Husain (1913) 35 All. 240, 18 
l.C. 721. In the following cases it was 
held that the compromise did not bind 
the actual reversioners • Jlimmat Bahadur 
V. Dhavipat Bai (1910) 38 AH. 335, 35 
l.C, 148, {'17) A. A. 481 (no bona fide 
dispute and no bona fide settlement^ ; 
Kanhaiya Lai v. Kishon Lai (1916) 
38 All. 670, 35 l.C. 083, ('16) A.A. 38 
[probably no longer law] — see (1922) 49 
I .A, 342, 1 Pdt. 741, 69 l.C. 71, ('22) A. PC. 
350 infra ; .7an«A: KUfiori v. Babu J)ebi 
Praxad (1917) 2 Pat. L.J. 370, 39 l.C 750, 
('17) A.P, 490 [compromise by a widow of 
her claim as a legatee under her husband's 
wUi] ; Anup Narnyan v. Mahabif Prasad 
(1918) 3 Pat. L. J. 83, 42 I. C. 95, (’17) 
A. P. 86 (compromise not for the benefit 
of the estate] ; Narayan Singh v. 
Baikvmar (1922) 44 All. 428, C6 I. C. 82, 
(’22)' A. A. 217 (conipromise not for the 
benefit oi the estate]; Musammat Bhag- 


u'ali V Jof/flrftfw (1921) G Pat. L. J. 604 
621-622. 67 l.C. 507, (’22) A.P. 352 
(no doubtful claim], 

(si Ituin'<unirati Prasad v. Shuam Kuman (1U22) 
49 l.A. 342, 1 Pat. 741, 69 l.C. 71, (’22) 
A. PC, 356, approving Mohendra Nath 
V. Sha}rmtnne8f!a (1915) 21 Cal. L. J. 157, 
27 l.C. 954, ('15) A.C. (529 ; Baogi Rvpa v. 
Kunjalal Uiralal (1930) 57 l.A. 177, 55 
Bom. 455, 123 l.C. 709, (’30) A. PC. 103. 

(/) /‘wad v. !>hvam Kumati 

(1922) 1 Pat. 741, 745-746, 49 l.A. 342, 
69 l.C. 71, (’22) A.PC. 356 . Babulal v. 
Maniklal (1941) Nag. 124, 192 I C, 826. 
('41)A.N. 79. 

(u) Obala Kondoma v. Kandasam\ (1924) 51 

I A. 145, 47 Mad. 181. 79 l.C. 981. ‘('24) 
A.l'C, 56 ; Baijnath Pal v, Mangla Piasad 
(1926) 5 Pat. 350,90 l.C 732, (’26) A.P. 1.; 
MuthukuTnalli Itamayya v. Uppalapoii 
Lakhhmayya (1D43) Mad. 1, 202 I C, 1, 
69I.A. 110, (’42)A.PC. 59 
(y) Mi liajpali Kunuar v. Sureju 7^«i(1936) 
58 All. 1041 (F.B.), 103 l.C. 756. (’36) 
A.A. 507 ; Muthukamalh Pamayya v. 
Vppalapati Lakshmayya (1948)’ Mad. 
1,202 l.C. 1, (1942) A. L.J. 392. 69 l.A. 
110, ('42) A.PC. 69. 



COMPROMISE BY WIDOW. 


209 


conversion operated ae a forfeiture of his rights in the property and that the property 
became immediately on conversion the property of B. S claims the property as -4*8 
daughter’s son. A compromise is then arrived at between the parties under which 

D obtains 81 annas of the joint property and S gets 
7} annas. S then alienates his share to X. After 
D’s death, her son, F, claiming to be the reversionary 
heir to his grandfather, B, brings a suit against X to 
recover from him the property transferred to him 
by iS. It is contended on behalf of F that D, as B’b 
daughter, took only a limited interest in the property, 
and that she had therefore no authority, in the absence 
of legal necessity, to alienate the 7 1 anna share in favour of S. 

On the above facts it was held by the Privy Council that the compromise was 
binding upon F and that he was not entitled to recover the property from X. Their 
Lordships said : “ The true test to apply to a transaction which is challenged by the 

reversioners as an alienation not binding on them is, whether the alienee deriues title 
from the holder of the limited interest or life tenant. In the present ca.se Khairati Lai [S] 
acquired no right from the daughters [D] of Danlat [B], for the ‘ compromise*, to use 
their Lordships' \&ngua.giin Rani Mewa Kuar v. Rani -Hulas Kuar (to), is based on the 
assumption that there was an antecedent title of some kind in the parties and the agree- 
ment acknowledges and defines what that title is** : Khunni Lai v. Gobind Krishna 
(1911) 33 All. 356, 38 LA. 87, 102-103, 10 I.C. 471. 

(b) A Hindu, H, dies leaving a widow, W, and a daughter, D. After the death of 
H, ir adopted a son P to H, P dies leaving a widow, 
B, and a daughter, S. After P’s death D claiming 
as the heir of her father, H, sues B for possession of 
certain property alleging that it formed part of the 
estate of H and that B was not entitled to retain it. 
B contends that the property in dispute belonged 
to P as the lawfully adopted son of H, and that on 
P’s death she, as P*s widow, became entitled to it. 

The suit is settled by a compromise by which the property is divided in certain shares 
between D and B. B then dies, and after her death her daughter S sues D to set aside 
the compromise entered into by her mother, B, alleging that it involved an alienation 
of part of the property of her father, P, and that B, os P’s widow, had no authority to 
alienate it without legal necessity, and for recovery of the property from D. Upon these 
facta it was held by the Judicial Committee that the compromise was binding on S, and 
that she was not entitled to recover from D the property transferred to her bj' B. Their 
Lordships said : “ The compromise in question is in no sense of the word an alienation 
by a limited owner of the family property, but a family settlement in which each party 
takes a share of the family property by virtue of the independent title which is, to that 
extent, and by way of compromise, admitted by the other parties’* : Hiran Bibi v. Sohan 
Bibi (1914) 18 C.W.N. 929, 932, 24 I.C. 309, (*14) A.PC. 44. 

(c) A Hindu died leaving a widow and a paternal uncle’s son. Prior to his death 
the deceased had brought a suit for a sale of certain propertiea mortgaged to him. The 
suit was continued by thn widow, and she obtained a decree for Bs. 1,47,000. Six of 
the mortgaged properties were then put up for sale by auction, and the widow, having 
leave to bid, bought them for Rs. 65,075. The mortgagors filed a petition in objection 
to the sale. The widow entered into a compromise with the mortgagors, one of the 
terms of the compromise being that the sale should be set aside. It was contended in a 
suit brought by the paternal uncle’s son against the widow, the mortgagors and certain 


H = W 


D 


L 


B 


B 

i 

i 


m 

Lx 


S.193 


(w) (1875) 1 I.A. atp. 160, 



210 


HINDU LAW. 


Ss. 

193, 194A 


persons to whom the properties were sold under the compromise that as the widow had 
purchased at the auction, the transaction was an alienation of immoveable property and 
therefore could only be justified by strict proof of necessity. Upon the facts the Judicial 
Committee held that the pompromiae was hona fide and for the benefit of the estate, 
and that the widow had power to enter into the compromise. As to the contention that 
the transaction amounted to an alienation of the husband’s estate, their Lordships were 
inclined to think that an alienation, which is the result of a compromise, or the mode by 
which a compromise is carried into effect, would, if the compromise is reasonable and for 
the benefit of the estate, fall within the power of the holder of a Hindu woman’s estate^ 
either as being an alienation which is to be deemed to be by necessity, or as being in a 
parallel position to an alienation induced by necessity : Ramsumran Prasad v. SKyam 
Kumari (1922) 49 LA. 342, 1 Pat. 741, 69 I.C. 71, (’22) A.PC. 356. 

This section relates to cases of compromise to which the reversioners are not parties 
S. 192 deals with cases of compromise to which the reversioners are parties. 

As to burden of proof in cases of compromise, see notes to s. 182, “ Burden of proof ; 
‘ Consent decree’ involving alienation to mortgagee” at p. 191. 

194. Compromise by widow of claims made by next rever- 
sioner. — Where a widow in possession of her husband’s 
estate has entered into a compromise of a claim made by the 
next reversioner in respect of the estate, and the compromise 
is in the circumstances a family settlement which is prudent 
and reasonable, it is binding upon the estate [that is, the whole 
body of reversioners] (x). A mere device, however, between 
the widow and the next reversioner to divide the estate 
between them cannot be supported on the ground of a family 
arrangement. Thus a surrender by a widow of the whole of 
her husband’s estate to the next reversioner, coupled with a 
re-transfer of the estate by him to the widow whereby she is 
constituted the absolute owner thereof, and a transfer back by 
the widow to him of part of the estate, cannot be supported 
as a family arrangement, and it is not binding on the actual 
reversioner at the nddow’s death, not even if he is the son of 
the consenting reversioner. If the nddow purporting to be 
the absolute owner of the properties that came to her share, 
transfers them to a third person the actual reversioner is 
entitled to have the transfer set aside (y). 

194A. Widow’s power of alienation for payment of trade 
debts. — A widow or other limited heir may alienate or 
charge the estate for payment of debts properly incurred 
by her in connection with the business inherited by her from 
the deceased owner ( 2 ). If the business involves the purchase 


(t) Mata Prasad v. Karjeshar Sahax (VJ2o) 52 
I.A. 398, 47 All. 883, 91 I.C. 37, (’25) A PC. 
272 [compioinise of Ruit], 

(y) Thakur Prasad v ^tusammnl D\pa Kver 
(1931) 10 Pat. 352, 134 I.C. 129, (’31) 


A.P. 442. 

(r) Sunder v. Acchhan Kunxear (1808) 

21 AH. 71, 25 I.A. 183. Sec also Amar- 
nnth V. Aokhnn Kuar (1892) 14 All. 420, 
19 I.A. 19Q. 



UNSEOUKED DEBTS. 


211 


and re-sale of iranioveable property, she may in the (’ours(; of 
business sell properties so p\irchase<] by her. No (piestion of 
legal necessity arises in such a case (a). 

As to unsecured trade debt s, sec s. 195. 

195. Unsecured debts incurred by widow for legal neces- 
sity. — Debts contracted by a widow or other ieraale heir 
may be ordinary debts incurred for purposes amounting to 
a legal necessity, e.g., marriage of her daughter, br they may 
be trade debts. 


As regards ordinary debts incurred for a legal necessity, 
there is a conflict of opinion whether if the debt is not 
secure by a mortgage or a charge on the estate, the 
estate is liable in the hands of the reversioners after the 
widow’s death. Ib has been held by the High Oourts 
of Madras (b), and Allahabad (c), that the estate is not 
liable in such a case, the reason given being that a creditor 
who has accepted the personal liability of a widow is 
not entitled to proceed against the estate. On the other hand, 
it has been held by the High Court of Calcutta ((f), that the 
debt being incurred for a legal necessity the estate is liable 
even if no mortgage or charge is createci on the estate. In a 
later Calcutta case (e) where necessary repairs were executed 
to a house inherited by a daughter from her father, it was 
held that the estate of the father was liable though uo charge 
had been created, the ground of the decision being that the 
estate had benefited by the repairs. A Full Bench of the Bombay 
High Court has recently followed the Calcutta High Court 
dissenting from other High Courts and overruling its own earlier 
decisions (/). 

This is also the view taken in Nagpnir {^). But if the 
creditor wishes to proceed against the estate he must frame his 
suit in a proper manner (//,); for if the suit is fihxi agaiust the 
widow personally and not as representing the estate, onlv the 
widow’s interest can be proceeded against in execution' (-i). 


(a) Pahalwan Smgh v. Jiwhh Dm (lOflO) 42 All. 

109, flO l.U. 162, ('20) A A. }145. 

(b) JiartviBainiy. Selaitnmmil {18S2} 4 Matl. 375. 

Seo also Itegetla v, J^imitshakuri (1910) 33 
Mad. 492, 5 I.C. 271. 

(c) Dhxraj Svigh v. Manga Horn (1897) 19 All. 

300 [money Borruwrd by \>ldow lor 
marriage ex|miij*«« of graml'daiigUter — 
no writing]. 

(d) Ranieoomur v. Ichaimgi (1881) d Cul. 30 

[money borrowed by widow for inavriage 
expenses of gruiid-daughter—i»o writing). 


(p) V. (i884V Ut Cal. •» 

(f) ATwAttiai Sut'J ) ft 
(1938) 00 IVmUv all. IVHU. L H 
0, 100 lAh lOAO, A. li :•') [hWi h 

(g) iiaghwtptH* Baiuppii 347 

(A) Andmltt Kud \ Aft. i ' 

,Nag. 1, (*37) A. N. 299. 

(♦) V itr.W/cfW Nag. 382, 

\’38) A. N. 225; Shn’ii'h i-ifaistt Mum v. 
Thakar I'anchuHint Ntn/A (1930) lo Pat. 
708, 100 l.l'. 504, (‘37) .4. V. 58. 


S». 

194A. 



212 


HINDU LAW. 


Ss. 

195-197 


As regards trade debts it bas been held that such debts 
properly incurred by a widow on the credit of the assets of the 
liusiness inherited by her from her husband are recoverable 
after her death out of the assets of the business as against the 
reversioners who have succeeded thereto even in the absence 
of a specific charge on the estate (j). 

A widow who borrows on a simple bond may bind the estate by subsequently creating 
a mortgage on the estate for payment of the debt comprised in the bond {1:). As to 
alienations for trade debts, see. s. 104A. 


196. Acknowledgment of debt by widow. — ^Before the 
Indian Limitation (Amendment) Act, 1927, it was held by the 
Judicial Committee that an acknowledgment of debt by a 
widow or other limited heir does not bind the reversioners (1). 
It is now provided by sec. 3 of that Act that an acknowledgment 
signed, or a payment made, in respect of any liability, by a 
widow or other limited heir, shall be a valid acknowledgment 
or payment, as the case may be, as against a reversioner 
succeeding to such liability. 

For acknowledgment, see s. 19 of the Indian Limitation Act ; for payment of interest 
and part payment of principal, see s. 20 of that Act. The .Amendment Act of 1927 
amends s. 21 of the original Act. 


197. Surrender of estate by widow.— (i) Surrender must 
he of whole estate. — An alienation by a widow or other limited 
heir of the estate inherited by her may be validated if it can 
be shown to be a surrender of her ivhole interest in the whole 
estate (m) in favour of the nearest reversioner, if therehe only one, 
or of the whole body of reversioners, if there be more than one (n)at 
the time of the alienation. In such circumstances the question 
of necessity does not fall to be considered [ills-, (a) to (d) and (f)]. 
But the surrender must be a bona fide surrender, and not a 
device to divide the estate ivith the , reversioner (o). A sale 


(j) Sakrabhai v, ytaganlal (190*2) 26 Bom. 200 ; i 
Pahalwan Singh v. Jivun Das (1918) 42 
All. 109, 59 I.C. 102, ('20) A. A. 345. 

(A;) Bhnp Singh v. Jhumman Singh (1922) 44 All. 

95, 05 I.C. 724, ('22) A.A 109. 

(Z) Soni Ham v. Kanhaii/a Lai (1913) 40 I. A. 
74, 35 All. 227, 10 I.C. 291, alfmg. 32 All. 
33, 3 I.C 725. 

(»i) Muthukumulli Itaimyya v Uppalapati 
Lakuhmnyga (1913) Mad. 1, 202 I.C. 1, 09 
I A. 110, (’42) A.PC. 59, 15 I K 26. 

(h) Mangaya v. SheshgiriiVyd.b) 49 Bom. 187, 85 
I.C. 20, (’25) A.B. 129. 

(o) Jtanga<iwami\. rVdf/Ha/ipa (1919) 46 LA. 72, 
84, 42 Mad. 523, 537, 50 I.C. 493, (’18) A. 
PC. 190 ; Bhagmal Koer v. Dhaniddhan 
I^rasad Singh (1919) 46 I, A 259, 271, 47 


Cal. 460, 483, 53 I.C. 347, (’19) A.PC. 75 ; 
Siitreshwar v. Maheshrani (1920) 47 I. A. 
233, 48 Cal. 100, 57 I.C. 325, (’21) A.PC. 
107 ; Behari Lai v. Madho Lai (1892) 19 
Cal. 230, 19 I. A. 30; Bangappa v. Kamti 
(1908) 31 Mad. 360; Pilu v. Babaji (1010) 
34 Boin. 105, 4 I.C. 584 ; Moti v. Lnldas 
(1917) 41 Bom. 03, 37 I.C 945, (’10 )A.B. 
85 ; Khawani Singh v. Chet Ham (1917) 
39 All. 1, 37 I.C. 80, (’17) A.A. 341 ; Sham 
Hiiihi V. Jaichha (1917) 39 All. 520, 40 
I.C. 117, (’17) A.A. 300: Dilfoi Koer v. 
Ilarkii Singh ^917) 2 Pat. L. J. 573, 41 
I.C. 031, (’17) A.P. 538 , Chnndcr v. Sam- 
omayx (1894) 22 Cal. ,354; Thakur Prasad 
V. Musaviniat Dipa Kuer (1'.)'31) 10 Pat. 
352, 134 1 C. 129. (’31) A.P. 442. 



SURRENDER OF ESTATE. 


213 


of the estate for consideration cannot be regarded as a. sur- 
render {])). [ills, (e), (h) and (i)]. If there are two or more 
widows, the surrender must be by all of them {q). 

Surrender, — But the omission, due to ignorance or to oversight, of a small portion of 
the whole property, does not affect the validity of the surrender when it is otherwise 
bona fide (r). 

A surrender is not invalid merel}' because a small item of property, fi‘om the posses- 
sion of wliich the husband was kept out for a long time and the widow, therefore, was 
under the impression, that it did not belong to the estate, w'as not included in the deed (5). 

Where the husband exchanged one land for another and the deed of surrender by 
the widow mentioned the survey number of the former but the latter was actually 
delivered, the surrender was held to be valid (/). 

It is settled by long practice and confirmed by decisions that a Hindu widow can 
renounce in favour of the nearest reversioner if there be only one, or of all the 
reversioners nearest in degree if they are more than one at the moment. That is to say, 
she can, so to speak, by voluntary act oiierate her own death. The principle on which 
the whole transaction rei^s is the efiacement of the widow — an effacement which in other 
circumstances is effected by actual death or by civil death^ — which opens the estate of 
the deceased husband to his next heirs at that date. Now, there cannot be a widow who 
is partly effaced and partly not so, and consequently there can be no surrender or 
renunciation of part of the estate (i<). The surrender may be effected by any process 
having that effect, provided that there is a bona fide and total renunciation of the widow’s 
right to hold the property. Thus a compromise between a widow and the next 
reversioner may operate as a surrender (v) [see ill. (d)]. Again the surrender need not 
be effected by a single transfer of all the properties at the same time. It may consist 
of successive transfers provided the result at the end is a complete effacement of the 
widow {w), 

A deed of surrender is really a deed of gift and not a deed of release for purposes of 
stamp {x). 

Surreyider by widow coupled ivifk a provisioii for her rnabdenance.' — A surrender, as 
stated above, must be a bona fide surrender, not a device to divide the estate with the 
reversioner. To make an arrangement for such a device, it is not necessary that the 
lady surrendering should part with the property directly. An arrangement, by w'hich 
the reversioner as a consideration for the surrender promised to convey a portion of the 
property to a no»ii>iee or -nowiniees of the lady surrendering, might well fall under the 
description of a device to divide the estate. But where disputes arise between a widow 
and the next reversioner as to title to her husband’s property", and a cmnpromise is 
entered into whereby the widow relinquishes her right of succession to the property in 
consideration of a small portion of the property being set apart for her maintenance for 
her life, the compromise is a bona fide surrender of the whole estate, and not a device to 


0>) Sha)di Kumar Pal v. Mukundfal jilandal 1 
(1935) Qi Cal. 204, 156 I C, 209, ('35) A.C. j 
20 . 

(g) Dulhin Parhati Kuer v. Prasad 

(1035) 14 Pat. 518. 

(r) Hari Bui Annaji v. Karayan Uati (1938) 
Bom. 723. 

(,v) Brajeshivaree Baser v. Mauoranjim Datla 
(1937) 1 Cal. 019, 171 I.C. 020, (*37) 
A.O. 167. 

(i) Btnnayya v. Bapanamim (1937) Mad. 248, 
100 I.C. 153, ('37) A.M. 140 

(«) Ttanqu'iicami^. Kachiappa (lOlO) 46 I.A. 72, 
79-80, 42 Mad. 523, 532, 50 I.C, 408. ('18) 
A.PC. 190, 


(r) Bhaqwut Koer v, Dhanukdhuri (1019) 46 I.A 
259, 271, 47 Cal. 466, 483, 53 I.C. 347, 
('19) A.PC'. 75 ; Surre^hivar v. Mahesh- 
rani (1920) 47 I.A. 233, 48 Cal. 100, 57 I.C. 
325, (*21) A.PC. 107 ; Chinnasivuim v. 
J.p|i«,tM’tfm?(1019) 42 aiad. 25, 48 I.C. 147, 
(’19) A.M. 865: Angamathv v. Va)alha- 
rajulu (1918) 42 Mad. 854, 53 I C 336, 
(’20) A.M. 027 ; Hama ^una v. Dhondi 
(1923) 47 Bom. 678, 70 I.C. 007, (’23) A.B 
432 : Ram Adhar v. Ham Manohat (1923) 
45 All. 610, 73 I.C. 090, (’24) A.A. 114. 
(w) 3/«rw V. Hanso (1026) 48 All. 485, 95 I.C. 
543. (*26) A.A. 413. 

(i) In ft Khelro iUo»i Behya (1937) 17 Pat. 
95 (F.B.), 172 I.C. 847, ('38) A.P. 33. 


S.197 



214 


HINDU LAW. 


S. 197 


divide it with the next reversioner (y) [ills, (d) and (e)]. This decision was treated as an 
authority in a Bombay case for the proposition that a surrender may be total in spite of a 
provision for the maintenance of the widow surrendering the estate ( 2 :). \\ here the estate 

consisted of 231 acres on land and the widow reserved 42 acres thereout for her 
maintenance and purported to surrender the rest to her daughter, the next reversioner, 
it was held that the transaction did not amount to a valid surrender (a). Where the widow 
pm’porting to surrender her estate reserved a life interest for herself, the Privy Council 
held that there was no valid surrender (6). In Man Shujh v. KoivJa!:hbale (c), the 
estate was under the Court of Wards and the two widows were getting main- 
tenance of Es. 625 each per mensem. The widows then purported to surrender the 
estate to the next reversioner stipulating for an increased maintenance of Rs. 2,000 
per mensem. The Judicial Committee held that there was no bona fide surrender and 
that it was void in law [see ill. (f) ]. Where an estate was small and theincome was just 
sufficient for the maintenance of the widow and the deed of surrender stipulated that 
the entire income after the payment of land revenue should be paid to her^ it was held 
that no valid surrender was possible and that it was therefore invalid (cl). 

Motive . — The widow's motive in making a surrender is immaterial. Therefore a 
surrender by her cannot be called into question on the ground of improper motive (d). 

(2) Surrender in favour of female reversioners . — A 
surrender of the estate may be made even, in favour of a 
female reversioner (e). A surrender, however, to a female 
reversioner does not enlarge the estate of such reversioner, but 
merely accelerates it. It does not confer on the female 
reversioner any larger estate than the limited and qualified 
estate to which she would have succeeded had she survived 
the limited heir (/) [ill. (g)]. The estate vests in her as a 
limited owner and on her death it passes to the next reversioner. 
It cannot, however, revert to the Mudow, for the widow has by 
the surrender completely effaced herself (g). 

(2 A) A widow may surrender the estate in favour of the 
next male reversioner mth the consent of an intermediate female 
reversioner but in such a case the intermediate reversioner 
caimot reserve for herself a substantial part of the property or 
stipulate for any benefit except what is necessary for her 


(y) Surei/iicar v. Mahe'shrani (1920) 47 I.A, 
233, 48 Cal. 100, 57 I.C. 325. ('21; A.PC, 
107 ; Naru v. Tax (1923) 47 Bom. 431. 70 
I.C. 265, (’23) A.B. 191. See also Bern 
Chunder v. Sarnamoyi (1894) 22 Cal. 354 
[not good law, correct view — alienation 
wholly void] ; Kanuramy. Kafhi Chandra 
(1909) 14 C. W. 226, 21 I.C. 060 la 
decision of doubtful authority] ; Challa 
Sabbiah v. l*alni (1908) 31 3tod. 440 
{surrender of entire interest to rever- 
sioner — transfer back by reversioner of 
one-third to widow’s brother ptirsuani to 
agreement at time of surrender — euirender 
held valid] ; liangappa v. Kaml\ (1008) 
31 Mad. 366 [not good law —commented 
on adversely bv P.C. in (1919) 46 I.A. 72, 
84, 42 Mad. 523. 537, 50 I.C. 498, ('18) 
A. PC. 196] ; Sitanna v. Viranna (1934) 
57 Mad. 749, 148 I.C. 828, ('34) A.PC. 105, 
where the widow reserved only 0 acres 
of land for her mainlenaDce. 

(r) Ttama Nana v, Vhondi Murcri (1023) 47 
Bom. 67S, 76 I.C. 007, ('23)r A.B. 432, 
dissenting from Adireppa v. Tontappa 


(1920) 44 Bom. 255. 55 I.C. 369, (’20) 
A.B. 345; KrUhna Mahaturba v. Jiaban 
Eambhau (1944) Bom. 287. 

(<T) Oangadhar v. Prabhiidha (1932) 66 Horn. 
410, 140 I.C, 881, ('32) A.B 625. 

(b) liehari Lai v. Madho Lall (1891) 19 I.A. 

30, 19 Cal. 230. 

(c) (1926) 53 I.A. 11, 5 Pat. 200, 94 I.C. 830, 

(’26) A.PC. 2, in app. from (1923) 2 Pat. 
607, 73 I.C. 822, ('23) A.P. 492. 

(cl) Atlanta Nilkanth v. Lala Rupnaragan 
(1945) Nag. 698. 

(d) Challa Subbiuh v. Paluri (1908) 31 Mad. 446 ; 

Subbalakahmiy . Narayana lyyar (1935) 58 
Mad. 150, 152 I.C. 391, (’34) A.M. 535. 

(e) Silanna v. Viranna (1934) 67 Mad. 749, 148 

I.C. 828, (’34) A.PC. 105. 

(/) Bhupal Ramy. Lachnxa Kuar (1889) 11 All. 
253 ; Bepin Sehariy. Durga CAaran (1908) 
35 Cal. 1086, 1090 ; Rup Ram v. Reivati 
(1910) 32 All. 582, 6 I.C. 541. 

(y) Sartaji v, Ramjas (1924) 40 All. 59, 79 I.C. 
25, (’24) A. A. 166. But see Chengappa v. 
Buradagunta (1920) 43 Mad. 855, 60 I.C. 
135, (’21) A.M. 246. 



SUKBENDER OF ESTATE. 


216 


maintenance. If ske does so the surrender is invalid and 
does not bind the actual reversioner. In such a case a remote 
reversioner may file a suit for declaration to that effect {h). 

(3 ) Surrender in favour of female reversioners in Bombay . — 
The provisions of sub-sec. {2) do not apply to such females in 
Bombay as take an absolute interest in property inherited by 
them from a male, e.g., the daughter, daughter’s daughter, and 
the like. A surrender to such a female passes the whole estate 
absolutely to her [see ill. (h)]. 

(4) Gift of whole 'property to a third party with consent of 
next reversioner.— Thero. is a conflict of opinion whether a 
gift by a widow of her entire interest in the whole e.state to a 
stranger with the consent of the next reversioner can be 
supported as a suyender so as to bind the actual reversioner 
at the widow’s death [s. 183 (4)]. 

(5) Where surrender follows prior alienations. — Where 
a portion of the estate was validly alienated by the widow 
for legal necessity (such as discharge of husband's debts) 
and the remaining estate was then surrendered it was held 
that the surrender was valid {i). Where a wddow alienates 
a portion of the estate inherited by her from her husband 
without legal necessity and subsequently surrenders the 
whole of her interest in the estate to the next reversioner, 
the surrender itself is valid and the reversioner is not entitled 
to immediate possession of the portion so alienated, but must 
wait for possession until her death. The reason is thar though 
the alienation is not binding on the reversioner, it is binding 
on the widow for her life, and the alienee is entitled to possession 
during her lifetime (j). 

In the Calcutta case, Walmsiey, J.. held as above, while I'Asre, J,, that the 
surrender extinguished the prior alienations so as to entitle thx' reversioner to- reon'-ver 
immediate possession of the property nlieuated. As to the rights of an adopted 
see sec. 501). 

(6) Gift of whole estate followed by surrender of whole 
estate. — It has been held by the High Oourt of Bonilwv thst 
where a widow makes a gift of tin' whole est^dc to a tlrir.i 


{h) JuifuKi Xal/i Jldy v. Ji/otisfi ('humliii 
Ai'hariyii Chomiu (I'.Ml) ral. 
lAJ. 411), ('41) AX’, 41. 

(i) Jiam'tym v. (lOUT) Mad, Cis. 

16b J.O. 163, ('37j A.M. 14(!. j 

{)) V. 3l> Mftii. i 

m-.K V t!. H13, (’17) A.^t. 473 bttort- 1 


Vithoul b'v>] no-mw.i'i ■( Sa>.- 

ifi V. -i}-; hS “VrMd, 

ess. ’>1 IV. 401 ^ V V. . 7''r'’fu>trr 
V ‘''•1 T* 

\ t"*. 1*11 ’•<=-!: >\‘virii = '. 'i 

i'lUX; ■ >, I I’oUe 

4't \1> \ i -r - A A 

V lO Vc ! bi,"-' T-' ' --i!.’ ‘ 





216 


HINDU LAW. 


S. 197 


person, and afterwards surrenders the whole estate to the 
next reversioner, the suiTender is in operative and invalid the 
reason given being that the widow by giving away the whole 
estate prior to the surrender put it out of her power to surrender 
her whole interest in the estate in favour of the reversioner {k). 

(7) Surrender followed by adoption . — A valid surrender 
made by a Hindu widow of her husband’s estate to the next 
reversioner cannot be defeated by a subsequent adoption of a 
son to her husband. The effect of a surrender is to vest an 
absolute estate in the reversioner, and the adopted son is not 
entitled to question it (Z). It is otherwise if the surrender is 
invalid as being partial (m), or if it is invalid as in the case put 
in sub-sec. (6). 

Illustrations. » 

(a) A Hindu dies leaving a widow and a daughter’s son. The widow surrenders her 
estate in four out of the five p/opeUies inherited by her from lier husband to the daughter’s 
son. The surrender is not valid, for it is a surrender only of a portion of the estate ; Pilu 
V. Babaji (1910) 34 Bom. 165, 4 I.O. 584. 

(b) A Hindu die.s leaving a rvidow, a daughter and a daughter’s son. The widow 
executes a deed in favour of her daughter's son, whereby she reserves a life-interest for 
herself in her husband’s property, and declares that after her death the property should 
go to the daughter’s son. This is not a valid surrender, for it is not a surrender of the 
widow's eiilire estate in the property. A widow can accelerate the estate of the next 
reversioner only by conveying absolutely and by destroyiny her life-estate. It is essen- 
tial that she should withdraw her own life-estate, so that the whole estate may get vested 
at once in the reversioner : Behari Lai v. iladhoLal (1891) 19 Cal. 236, 19 I. A. 30. 

(c) A dies leaving a mother M. M succeeds to .-I’s properties for a woman's estate. 
She then transfers by way of gift a portion of the properties inherited by her to R who 
was then the nearest reversioner. The alienation is not valid, as it i.o not a surrender 
of i/’s entire interest in the whole e.state : Rangaswami v. Xachiappa (1919) 46 I.A, 72, 
42 Mad. 523, 50 I.C. 498, (’18) A.PC. 196. 

(d) A Hindu dies in 1872 leaving a widow' and a nephew. The nephew claimed 
the property as sole survh'or of the joint family and applied for a cert ideate to collect 
debts due to the estate of A. The widow opposed the application and alleged a parti- 
tion. The Court found that the alleged partition had not taken place and granted the 
certificate to the nephew. This decision, being given only on a question of representa- 
tion, did not preclude the widow' from raising the question of title again in a suit properly 
instituted for that purpose ; but the widow accepted the decision and by an agreement 
made in 1874 she recognized the nephew’s title, and was granted by him a maintenance 
allowance which she continued to receive until her death in 1904. The nephew died in 
1894, and the estate passed under his will to B. In 1907 D claiming as the reversionary 
heir sued B to recover the estate. It was held by the Judicial Committee that the 
widow’s agreement of 1874, in conjunction with her acceptance of maintenance till 1904, 


(i) Salharam v, Thaja<L{lQZ7) jl lloin. 1019, 
107 I C. 20.5, (’27) A. B. 26. 

(I) llama jVaiia v, Dhondi (1923) 47 Bom 67S, 
70 I.C. 607, ('23)4. B. 432 [surrender 


U]4icldl ; I'es/aa»((i v. Autu (1934) 38 
Bom. 521, 1.54 I.C. 2.52. (’34) A. B. 301. 
(wi) I'lOi V. baboji (1910) 34Boin. 165, 4 I.C. 
084. 



SURRENDER OF ESTATE, 217 

amounted to a complete relinquishment of the estate to the nephew, then the next 
reversioner, and that D's claim accordingly failed. Their Lordships of the Privy Council 
said that there was in this ease a complete self-effacement by the widow which precluded 
her from asserting any further claim to the estate : Bhagwat Koer v. Dhanvkdhari Prasad 
Singh (1919) 46 I.A. 259, 47 Cal. 466, 53 I.C. 347, ('19) A.PC, 75. 

(e) A Hindu dies leaving a widow and 4 daughters. By his will he bequeaths his 

immoveable property to the daughters. On his death the daughters take possession 
of the property under the. will. The next reversioner sues the widow and daughters to 
set aside the will. The parties enter into a compromise by which the daughters give up 
their rights under the will, the widow surrenders all rights of .succession to the immoveable 
property, and the plaintiff who by the surrender becomes entitled as next reversioner 
transfers half of the property to the daughters, and the plaintiff and the daughters each 
give a small portion of the land to the widow for her life. The compromise is a bona fids 
surrender of the whole estate, and not a device to divide it with the next reversioner. 
In the course of the judgment of the Judicial Committee said : “ Is it then a device to 
divide the property between the lady and the reversioner t . . . . It is here that the 

fact of the arrangement being a compromise becomes of importance. Once the boTut fide is 
admitted, we have the situation of a contest under which, if decision were one way, the 
estate was carried to the daughters away from the family, and a litigation in the course 
of which the estate would probably be much diminished. The situation made it a 
perfectly good consideration for the lady in order to avoid these results to consent to 
give up her own rights by surrender . . . The conveyance of small portions of land to 
the widowed mother was unobjectionable as it was only for maintenance" ; Sureshwar 
V. Maheshrani (1920) 47 I.A. 233, 238, 48 Cal. 100, 57 I.C. 325, (•21) A.PC. 107. 

(f) The widows of the late male owner who were each getting rupees 625 a month 
as maintenance from the Court of Wards which was managing the property executed a 
deed by which they purported to surrender all their rights in the property inherited from 
their husband to the next reversioner, the latter agreeing to pay to the widow Rs. 2,000 
per month for maintenance, the sura in case of default to be a charge upon the estate. 
The Privy Council, ob.serving that there was no necessity for the surrender and that in 
49 Cal. 100 the giving of a small portion of the estate to the widow for her maintenance 
was not objectionable, held the surrender to be void in law : ilan Singh v. Noiciakhbati 
(1926) 53 I.A. 11,5 Pat. 290, 94 I.C. 830, (’26) A.PC. 2. 

(g) -A Hindu governed by the Benares school of Hindu law dies leaving a widow, a 
daughter and a paternal uncle's son. The widow surrenders her interest in the property 
inherited by her to her daughter. The surrender is valid, but since a daughter, according 
to the Benares school, takes a limited estate, the surrender will not enlarge her estate, 
in other words, she will not take the property absolalely. Th effect of the transaction 
is simply to accelerate the daughter’s succession to the property and to entitle her to 
immediate possession. On the death of the daughter the property will pass to the uncle’s 
son : Bhupal Earn v. Lachma Knar (1888) 11 All. 253. It will not revert to the w'idow 
though she may then be alive. 

(h) A Hindu governed by the Bombay school dies leaving a widow, a daughter and a 
nephew. In ilarch 1911, the widow executes a deed of gift of the whole estate inherited 
by her from her husband in favour of her daughter. [A daughter in Bombay takes an 
absolute estate in the property inherited by her from her father ; therefore, sub-sec. (2) 
does not apply.] In December 1912, the daughter transfers the whole estate back to 
the widow absolutely. The daughter dies in 1915 leaving a daughter. In April 1916, 
the widow makes a gift of the entire estate to her grand-daughter. On the death of the 
widow the nephew claims the estate as the reversionary heir. The gift to the grand- 
daughter is valid, and the nephew is not entitled to the property. The Court said ; 


S. 197 



218 


HINDU LAW. 


Ss. “It cannot be suggested in the present case that in 1‘JII, when the widow was in bad 
191, 198 health, and her widowed daughter was staying with her, it was intended to be merely 
a deviee to divide the estate with the reversioner Xaru v. T(ii (1923 ) 47 Bom. 431, 
437, 76 I.C. 2Go, ('23) -4.B. 191. 

(i) A Hindu widow surrenders the whole oi her estate to the ne.xt reversioner. 
At the same time the nest reversioner transfers it back to the widow, and declares that 
she is the absolute owner thereof, and the widow in her turn transfers part of the estate 
to the next reversioner. It is found that there was no dispute of any kind between 
the parties, and the sole object was to convert the widow's estate into an absolute estate ,, 
in consideration of a transfer of part of the estate to the next reversioner. The trans- 
actions are not binding on the son of the next reversioner, and he is entitled to avoid 
alienations of the estate purporting to have been made by her as the rtbsohile owner 
thereof ; riiafciir Pr(t3udv. .l/iiS'inimatDipa Auer (1931) 10 Pat. 352, 134 I.C. 129, (’31) 
A.P. 442. 

198. Widow’s power of management and investment.— 
(2) A widow or other limited heir is entitled to manage the 
estate inherited by her. Her power to manage the estate is 
similar to that of a manager of an infant hstate as defined 
by the Privy Council in Hunooman Persavd v. Mimamat 
Babooee {n). “ A widow like a manager of the family, must be 
allowed a reasonable latitude in the exercise of her powers, 
proA-ided, .... she acts fairly t© the expectant heirs’’ (o). 
The Court will not interfere with her management, unless 
there is danger to the estate from the manner in which she is 
dealing udth it (p) [s. 204]. 

(2) If the husband has left debts, the 3vidow is not bound 
to apply the income of the estate in discharge of the principal, 
but is bound to pay out of the surplus of her net income, only 
the interest {q). She is entitled to sell or mortgage the 
estate for the payment of the debts. The net income is her 
o-wn exclusive property as widow, and she is not bound either to 
save or apply it for the benefit of the reversioners. At the same 
time she is not entitled to ignore the charges which are legally 
payable out of the gross income such as the qjeishcush and 
maintenance due to other members of the family and thereby 
add to the debts left by the husband so as to prejudice the 
reversioners (r). 

(3) The widow is entitled to invest monies forming part 
of her husband’s estate in such securities as she thinks proper 
so as to realize the highe.st interest. She is. not bound to 

(n) (18'>6) 6 M.r.A. .'i93 . KamPMcnr Pernhad v. I (;) Jaqannatham v. Vighne&lparadu (1932) 55 
Pun Bafmiloor 0 CM. »43, 8 I.A. 8. Mad. 216. 134 I.C. 881, (’.'52) .A. M. 177. 

(a) Venkaji v. Vi^/tnu (1894) 18 Bom 534, 536. i (rl Itainapaini Clieiti v. Mangaikar^tc (1395) 18 
(p) Ilurri/doss v. Sreemutty I'ppoornah (1856) ' .Mad. 1 13, 119-120 ; Dffii flayal SuAoo v. 

6M.IA.433. 1 JS/iai! Partaji .SinjA (1904) 31 (Jill. 433, 443. 



DECEEE AGAINST LIMITED HEIR. 


219 


invest in Government securities. She may lend the monies on 
a mortgage. The Court must take care not to interfere with 
or restrict her in the full enjoyment of her rights as conferred 
upon her by the Hindu law in order to prevent a possible 
danger (s). 

If the property consists of a quarry, she may work the quarry, and apply the proceeds 
for her own purposes, provided she does not exhaust the land (t). 

199. Decree against widow when binding on reversioners.— 
A widow or other limited heir represents the whole estate 
in legal proceedings relating thereto. Therefore, a decree passed 
against her and a sale of the estate in execution of such decree 
is binding not only on her, but on the reversioners, even 
though they were not parties to the suit, provided — 

(1) the suit was in respect of a debt or other transaction 
bindii^g on the estate (u), and 

(2) the decree was passed against her as representing 
the estate, and not in her personal capacity [v), 

“ unless,” as laid down by their Lordships of the Privy Council 
in the Shivagunga case (iv), “ it could be shown that there had 
not been afair trial of the right in that suit.” This does not 
mean that the suit should have been contested to the end as 
was erroneously held in the under-mentioned cases (»). The 
widow is entitled to compromise the suit, and a decree passed 
against her, though on a compromise or on an award, binds the 
reversioners as much as a decree in a suit contested to the end, 
provided the compromise was entered into by her bona fide for 
the benefit of the estate and not for her personal advantage. 
This rests on the fundamental principle that a compromise 


(.'>■) Bisicanath v. Kfiantomnni (1870) 6 Beng. 
L H. 747-751. 

(0 Sitbba Reddi v. Chengalamma (1899) 22 5Ead. 
12G. 

(h) Jugal Eisbore v. Jotendro Mohun (1884) 
10 Cal. 985, 11 I.A. 66 ; Jhan x. Bijai 
(19231 45 All. 613, 74 I.C. 865, ('24) A. 
A. 109. See also Devji v. Sambhu (1900) 
24 Bom. 133 ; Veerabadra v, Marudaga 
(1911) 34 Mad. 188, 8 I.C. 1072. 

(f) Eatama Natehiar v. Raja of Shivagunga 
(1863) 9 M.LA. 539, 543, 608 [decree on 
ground ’personal to the widow] : Nugender 
V. Kannnec (1867) 11 M.I.A. 241 ; Baijun 
V. Brij Bhookun (1876) 1 Cal. 133, 2 I.A. 
275 ; Partab Narain v. Trilokoi (1884) 11 
I.A. 197, 207, 11 Cal. 186 ; Hari Nath v. 
Mothurmohun (1894) 21 Cal. 8, 20 I.A. 
183 [decree against daughter — res judi- 
cata] ; Risal Singh v. Balivant Singh (1918) 
45 I.A. 168, 40 All. 593, 48 I C. 553, (’18) 
A PC. [r«s judicata] ; Qhelabhai v. Bai 


Javer (1913) 37 Bom. 172, 17 I.C. 866; 
Tirupatiraju v, Vtnkayga (1922) 45 Mad. 
504, 67 I.C. 479, ('22) A.M. 131 (F.B.) [not 
sued in representative character]; Snlbi 
X. Ramkrishnabhatta (1018) 42 Bom. 69, 
43 I.C. 233, (’17) A.B. 11 ; Bai Kanku v. 
BaiJadav (1919) 43 Bom. 869, 53 I.C. 164, 
(’19) A.B. 146 [decree against widow 
on ground personal to herself] ; Pramatha 
Nath V. Bhuban Mohan (1922) 49 Cal. 45, 
64 I.C. 980, (’22) A.C. 321 [res judicata ] ; 
Lalit Mohan x. Dayamoyi (1927) 45 Cal. 
B.J. 404, 105, I.C. 469, (’27) A.PC. 
41 [personal decree against daughter]. 

(w) Eatama Natehiar v. Rajah of Shivagunga, 

supra, 

(x) Mahadei v. Baldeo (1908) 30 All. 75 : Shea 

Narain v. Ehurgo (1832) 10 C.L.R. 
337; Rajlakshmi x. Kaiyayani (1911) 38 
Cul. 639, 672. 074, 12 I.C. 464 : Jmvn v. 
Veerbai (1903) 5 Bot«. L. U. 887 ; 

Ram Sarup v. Hum Dei (HWT) 29 AU, 
239, 241. 


Ss. 




220 


HINDU LAW. 


S. 199 entered into bv a Hindu widow bona fide for the benefit of the 
e.state, and not for her own personal advantage, binds the. 
reversioners as much as a decree against her after litigation {y). 
See s. 193. 

The suit being against the widow in a representative character, that is, as representing 
her husband's estate, a decree passed against her operates as res judicata against the 
whole body of reversioners under the Code of Civil Procedure, s. 11, Expl. 6. A decree 
against the widow in respect of a transaction entered into by her husband binds her as 
well as the reversioners {z). A decree against the widow in respect of debts contracted 
for the purpose of carr 3 'ing on a monej'-lending business inherited from her husband 
would not be a mere personal decree but would bind the rever.sionary estate (o). But a 
decree passed against a w idow personally though it be in respect of debt incurred for legal 
necessity, does not bind the estate ; a sale, therefore, in execution of such a decree can 
pass no more than the life-interest of the widow (/>). 

Before the Privj- Council decision in Ranisuynran Prasad'e case (c). there was a con- 
flict of opinion whether a consent decree or a decree on an award bound the reversioner. 
This conflict is now act at rest by that decision, and such a ^ecrec may be as binding 
as a decree in a contentious suit. 

With reference to the argument that a Hindu widow cannot compromise a suit in 
any case, Mookerjee, J., said in a Calcutta case (d) : “ The view cannot be defended on 

principle that a qualified owner like a Hindu widow, daughter, or mother is bound at her 
peril to pursue a litigation in respect of the estate in her hands, unremittingly to the 
ultimate Court of Appeal, and that she cannot bona fide effect a settlement of the matter 
in controversy, even thmigh such compromise be in the best interest of the estate."’ The 
decision in that case was approved by their Lordships of the Privy Council in Ramsumran 
Prasad's case (e), in which their Lordships said : ” It may be observed at once that the 

argument which would refuse authority to compromise in any case would have very 
extreme consequences. A Hindu woman might be party to a litigation concerning 
considerable immoveable property', might be successful in the first Court and be threatened 
with an appeal, and have then a suggestion from the adversarj- that if she would part 
with a single item of property or few bighas he would let the judgment stand. She 
would have if the argument were sound to refuse the suggested compromise, and be 
prepared to fight the case up to the Privy Council. Or it might be put in another way. 
Her opponent could never suggest a compromise, because he would know that any com- 
promise would be upset. It would be very undesirable in the interests of property owners 
that this extreme doctrine should be upheld, and their Lordships, after consideration 


{y) HamaumTan Prasad v. Shyant Kumari (1922) 

49 LA. 342, 1 Pat. 741, 09 I.C. 71, ('22) ' 
A.PC. 356, approving Mohendra Sath [ 
V. .Sfiameunnessa (1915) 19 C. N. 
1280, 1265, 27 I C, 954, <'15) A.C. C29 ; , 
v. Avudaiyammal (1907) 30 j 
JIad. 3 [admission of debt by \^ido\v — | 
decree on admission] ; Jihogaraju v. Ad- ' 
de-ppalli (1912) 35 Mad. 500, 504-565, , 
12 I.C. 123 ; Gur Kanak v. Jauiaraxn 
(1912) 34 All. 385, 14 I.G. 814 [appeal | 
filed by widow withdrawn] ; Mata Prasad 
V. yageshar Safiai (1925) 52 I. A. 398, 

47 All. 883, 91 I C. 370, (’25) A.PC. 272 ^ 
[compromise of suit between widow and 
next reversioner]. 

(r) Madualappa Irappa v. Subhappa Sbanka- I 
rappa (1937) liom. 106, 39 Uom. L. 11. . 
805, 172 I C. 184, (’37) A. B. 458. 

(o) B' T(ida Pramd Saha v. Krishna Chandra 

Saha (1934) 38 C.IV M. 33. 151 I.C. 268 i 


(’34) A.C. 414. 

(b) Kallu V. I'aiyaz (1905) 30 All. 394; Jugid 
Kuhore v. JUindro (1884) 11 I.A. 66, 73, 
10 Cal. 985; Lalit Mohiin v. Dai/anioi/i 
(1927) 29 Bom. L.B. 759, 105 I.C. 46 >, 
(’27) -4. PC. 41 [personal decree against 
daugliter] ; Pasant Rao v. Beharilal 
(1938) Nag. 382, ('38) A. N. 225; Sheik 
Ghasit Mian v. Thakiir Panrkanan Singh 
(1936) 15 Pat. 798, 16G I. C 594, (’37) 
A.P. 58 ; Anand Bao v. Annapumabai 
(1937) Nag. 1, ('37) A. N. 299 ; Malhkar- 
jungoirda-Mudragoicda v. IVnl'cnfa Ram f- 
chandrappa (1940) Bom. 62S, 101 I.C. 
286, 42 Born. L.U. 600. 

(t) See footnote (.-) infra. 

(') Mohendra Sath v. Shainy>tnn‘'^<!a (1915) 21 
Cal. I.. J. 157, 103, 27 1 C. '.»:>4. 

(r) R'ansuniran Pras‘!ad v. s/f/aui Kumari 
(1022) 49 I A. 342. 340. 1 I’at. 741, 7t6, 
69 1 C. 71, (’22J A PC. 3.56. 



reversioner’s suit against widow. 


221 


of the authorities that have been cited to them, are glad to find that they are not driven 
to any such extreme position.” It follows from this that a decree on an award (/) and 
even a consent decree (g) would bind the reversioners if the compromise was for the 
benefit of the estate. An ex pmie decree also may bind the reversioners {h). 

A consent decree in a suit against widow by her husband’s brothers to recover 
property in her hands on the allegation that it is joint family property, in which she 
accepts that position and is satisfied with maintenance only, does not bind the reversioners. 
The reason is that the rule in this section applies only to a widow who represents her 
husband’s estate. The moment she admits that the property is joint, she ceases to 
represent the estate (i). A widow sued to recover properties belonging to her husband 
and obtained a decree. In appeal the matter was settled and a consent decree was passed 
by which a portion of the properties was adjudged to the opposite party who executed 
the consent decree and obtained possession. The reversioners then obtained a declara- 
tion that the consent decree did not bind them. The widow then filed another suit to 
recover the properties allotted to the opposite party by the consent decree but failed. It 
was held by the Privy Council that the last decree did not affect the reversioners (j). 

A decree against a widow for mesne profits on account of trespass committed by her 
in her personal capacity c^ only be executed against her personally and not against her 
husband’s estate (i). But where cess was due in respect of the husband’s estate and the 
estate in the hands of the widow was sold under the Public Demands Recovery Act, it 
was held that only the widow’s interest passed to the purchaser (1). Where the widows 
sued to set aside a sale of the husband’s property for arrears of revenue, obtained a 
decree in the trial court and got possession but the decree was set aside on appeal, and 
the widows became liable for mesne profits and costs and a portion of the estate in their 
possession was sold in execution of the decree, it was held that the entire estate passed 
under the sale (m). 

Even in a case where the decree might have been executed against the whole interest 
in the estate including the reversion, if what was actually sold, was described as the 
interest of the judgment debtor, as a widow, only her interest passed (n). 

Burden of proof . — In Ramsumran Prasad’s case to) their Lordships kept it open 
whether in a case of compromise of a suit by a widow the burden lies absolutely and 
without qualification upon the reversioners impeaching the compromise to show that 
the compromise was not for the benefit of the estate. 

As to debts binding on the estate, see sec. 195. 


200, Decree in reversioner’s suit against widow and res 
judicata . — When in a suit by the next reversioner against 
a widow relative to her deceased husband’s estate an issue 


is finally determined, the issue is 


(/) Shxb Deo V. Ram Prasad (1924) 40 All. 637, 
644-646, 87 I C. 938, (’25) A.A. 79. See 
Rama v. (1919) 43 Bom. 249, 48 i.C. 
125, (’18) A.B. 85. 

i'j) Subbammal v. Avudaiyammal (1907) 30 
Mad. 3. 

(A) Sarja Prasad v. Mangal (1925) 47 All. 490, 
492, 87 I.C. 204, (’25) A.A. 339. 

(0 Airman Bahadur v. Fateh Bahadur (1930) i 
52 All. 178, 126 I.C. 337, (’29) A A. 963. 

O) Sreemathi Bajlalcshmi Dasoe v. Bhala A'ofA 
hen (1938) 6.5 I. A 3!.5, (193*) 2 Cal, 653, 
(’3«) A. PC. 254. 


res judicata in any subsequent 


(A) Maharajadhiraj Kameshivar Singh Bahadur v. 
Benimahadeb Singh (1932) 11 Pat. 430. 
134 LC. 425, (’31) A.P, 422. 

(/) Mt, Ramjhrai Kucr v. Sheonarain Singh 
(1934) 13 Pat. 297, 155 I.C. 750, (’34) 
A.P, 000. 

(»ji) Bui in Parbati Kuer v. Baijnath Prasad 
(1935) 14 Pat. 518. 

{«) Nagendrabala Bassee Y. Panchanam MourU 
(1933) 00 Cal. 1236, 140 I.C. 1053. (’34) 
A.C. 162. 

(o) (1922) 49 LA. 342, 1 Pat. 741, 69 I.C. 71. 
(■22) A.PC. 356. 


Ss. 

199,200 



222 


HINDU LAW. 


Ss. 

200,201 


suit by another reversioner. It is not material that the plain- 
tiff in the second suit does not claim through the plaintiff in 
the first {p). See sec. 210. 

The reason is that in such a suit the reversioner sues in his representative character 
and the decree against him operates as res judicata against the whole body of reversioners 
under the Code of Civil Procedure, e. 11, Expl. 6. It is, of course, understood, in order 
that the decree may operate as res judicata that the litigation is not collusive or vitiated 
by fraud or laches on the part of the next reversioner in conducting the suit or in asserting 
his reversionary right. The reversioners will be bound by the decree even if the decree 
be a consent decree provided the compromise is prudent and reasonable. In fact the 
matter is governed by the same principle as that enunciated in sec. 199. 

201. Adverse possession against widow not adverse against 
next reversioner. — A person who has been in adverse possession 
for twelve years or upwards of property inherited by a widow 
from her husband by any act or omission in her part is not 
entitled on that ground to hold it adversely as against the next 
reversioner on the widow’s death. The (Uext reversioner is 
entitled to recover possession of the property, if it is immovable, 
within twelve years from the date of the widow’s death under 
art. 141 of Schedule 1 of the Indian Limitation Act, 1908 and 
if it is movable, within six years from that date under art. 120 
of that Act (q). Nor can there be any estoppel under sec. 41 
of the Transfer of Property Act against the reversioner by 
reason of the widow’s conduct (r) [ill. (a)]. See sec. 209. 

But where a decree founded upon adverse possession has 
been obtained against the widow in her lifetime the next 
reversioner is barred and he does not get the benefit of art. 141 
of the Lindtation Act (s) [ill. (b)]. 

Illustration. 

(a) A Hindu dies in 1869 leaving two widows and a brother’s son. He leaves a 
will whereby he bequeaths certain properties to trustees for dkaram. The trustees enter 
into possession of the properties on the death of the testator. The surviving widow dies 
in 1888. In the same year, that is, more than 12 years after the death of the testator but 
within 12 years from the date of the surviving widow’s death, the brother’s son sues the 
trustees for possession of the properties, alleging that the trust for dkaram is void. The 
suit is not barred even assuming that it would have been held barred if it had been 
brought by the widow. The brother’s son, as reversioner, is entitled to sue for possession 
of the property ; if it is immovable ,within 12 years, and if it is movable, within 6 years 
from the widow’s death. Where the property is immovable, art. 141 of the Limitation 


(p) Mata Prasttd v. Nupeshar Sahai (1923) 52 
I.A. 398, 47 All. 883. 91 I.C. 370, (’25) 
A. PC. 272 [consent-decree] ; VenJeatana- 
rayana v. Subbamvial (1915) 42 I.A. 125, 
38 Mnd. 406, 29 I.C. 298. (’15) A.PC. 
124 ; Bansidhar v. Dul^otta (1925) 47 All. 
605, 87 I.C. 235, (’26) A. A. 483. 

(g) Ranchordaa v. Parvatibai (1899) 23 Bom. 
725, 26 I.A. 71 ; Jaggo Bai v. Ut$avt 
Bai (1929) 56 I.A. 267, 61 All. 439, 
117 I.C. 498, (’29) A.PC. 166 ; Banfcey 
Lai V. Raghunath (1929) 51 All. 189, 112 


I.C. 801, (’28) A. A. 561 ; Aurabinda Nath 
▼. Manorama (1928) 55 Cal. 903, 112 I.C. 
496, (’28) A.C. 670, Is no longer good law ; 
Badri Narayan v. Narayan Singh (1943) 
Nag. 213, 200 I.C. 335, (’43) A.N. 193. 

(f) Shambu Prasad v. Mahadeo Prasad (1933) 
55 All. 554, 144 I C. 293, (’33) A. A. 493. 
(«) Shivagunga case (1863) 9 M. I A. 539; 
Vaithi linga v. Srirangath (1925) 52 I A 
322, 48 Mad. 883, 02 I.C. 85, (’25) A. 
PC. 249. 



REVERSIONERS AND THEIR RIGHTS. 


223 


Act applies, and where it is movable, art. 120 applies: RancTiordaa v. Parvatibai (1899) 
23 Bom. 725, 26 I.A. 71. 

(b) A Hindu belonging to the Sudra class died in 1849 leaving a widow A. In 
1862, A adopted R as a son to her husband and put him in possession of the properties 
inherited by her from her husband. At that date there was no person who could give 
B in adoption and the adoption was invalid. B died in 1864. On his death his nephew, 
claiming as his heir, entered into possession of the properties. The nephew died in 1881. 
On his death the nephew's mother M entered into possession of the properties and held 
them until 1884 when A forcibly ejected her. In 1887, M brought a suit against A for 
possession of the properties. In 1892 a decree was passed for possession in favour of 
M, the Court holding that though B's adoption was invalid, il/’s claim for adverse pos- 
session for 12 years was established. A died in 1902. In 1905, the plaintiffs claiming 
to be the reversionary heirs of the original deceased, sued M for possession of the properties. 
The High Court dismissed the suit. On appeal to the Judicial Committee it was held 
that the principle of the Shivgunga case [see s. 199] applied and that the decree of 1892 
against the widow (A) was binding upon the reversioners, the decree having been passed 
after a fair trial of the suit, and the appeal was dismissed : Vaithialinga v. Srirangaih 
(1925) 52 I.A. 322, 48 Mad. 883, 92 I.C. 85, (’25) A.PC. 249. 

Ill— REMEDIiSS AGAINST UNAUTHORISED ACTS OF WIDOWS 
AND OTHER LIMITED HEIRS. 

202. Reversioners and their rights. — reversionary heir, 
although having those contingent interests which can be 
differentiated little, if at all, from a spes successionis [s. 175], 
is recognized by Courts of law as having a right to demand 
that the estate be kept free from danger during its enjoyment 
by the widow or other limited heir. He may therefore sue 
to restrain a widow or other limited heir from committing waste 
or injuring the property [s. 204]. The reason why such a suit 
by a reversionary heii' is allowed is that the suit is by him in a 
representative character and on behalf of all the reversioners, 
so that the corpus of the estate may pass unimpaired to those 
entitled to the reversion {t). For the same reason he may 
bring a suit for a declaration that an alienation effected by 
her is not binding on the reversion {u) [s. 205]. In both cases 
the right to sue is based on the danger to the inheritance comtnon 
to all the reversioners, presumptive and contingent alike, the 
object being to forestall an injury which threatens the common 
interest of all the reversioners (v). Where a reversioner 
brings a representative suit for a declaration that an alienation 
by the widow is not binding on the reversion and dies, his 
right of suit survives not to his personal heirs but to the next 
presumptive reversioner (^£^). 

. 125, 128-129, 38 Mad. 406, 410-411, 
LC. 298, (’15) A.PC. 124. 

, y,., shwar v. Ganapati Devi (1937) Lab. 

( ) Venkatanarayanna v. Subbamriial (1015) 42 I 525, 366 I C. 753, (’36) A. L, 652. 


(0 Janaki Ammalv. N arayansafiii (1916) 43 
I.A. 207, 200-210, 39 Mad. 634, C38, 37 
I.C. 161, (’16) A.PC. 117. 


I.A 

29 

(c) Xhid. 

t.M\ 


Ss. 

201, 202 



• 224 


HINDU LAW. 


Ss. 

202-204 


The next reversioner for the time being to the estate of a deceased Hindu, expectant 
upon the widow’s death, is not entitled to a declaration under the Specific Relief Act, 
s. 42, that he is the next reversioner, although in that capacity he has the right to sue 
on behalf of the reversioners for the protection of the estate. Where, therefore, he sues 
the widow alleging waste [s. 2041, I'n*' prove any wrongful act on her part, a 

declaration that he is the next reversionary heir should not be made. The reason is 
that it is impossible to predicate until the succession opens who is the reversionary 
heir of the deceased proprietor, and such a declaration, if made, might be rendered 
valueless by the development of events (i). For the same reason if A sues B solely for a 
declaration that he (*-l) is the nearer reversioner, or that B is not a reversioner at all, the 
Court will refuse to make the declaration (y) [a. 203]. But if a reversioner sues a widow 
for on injunction to restrain waste [s. 204], or for a declaration that an alienation made 
by her is not binding on the reversion [s. 205], and the case is one in which the decree 
prayed for should be passed, the Court will pass a decree, though it may involve a finding 
that the plaintiff is a reversionary heir. Similarly, if a widow surrenders the whole 
estate to one of the reversioners [s. 197] and the plaintiffs claiming to be reversionary 
heirs equally with the grantee sue for a declaration that the surrender is not valid beyond 
the widow’s lifetime, the Court may make the declaration, though it involves a finding 
that the plaintiffs equally with the grantee are the next reversiqners (z). 


203. Suit for a declaration that plaintiff is next 
reversioner. — ^The next reversioner for the time being to 
the estate of a deceased Hindu, expectant upon the widows’ 
death, is not entitled to a declaration that he is the next re- 
versioner, although in that capacity he has the right to sue on 
behalf of the reversioners for the protection of the estate as 
stated in secs. 204 and 205 below {a). Where a suit is brought 
on behalf of reversioners for a declaration that a transaction 
by the widow is not binding on them, the defendants may 
plead that the person whose reversioners the plaintiffs claim to 
be was not the last male owner and the defendants themselves 
are the reversioners of the last male owner and the matter may 
be tried in the suit (6). 


This subject is explained fully in the notes to sec. 202 above. 


204. Injunction to restrain waste. — Where a widow or 
other limited heir in possession of property inherited by her 
commits waste or does any act which is injurious to the 
reversion, the next reversioner may institute a suit for a injunc- 
tion restraining her from doing so. But the Court will not 


(0 ]1916) « I.A. 207, 39 Mad. 634, 37 I.C. 161. 

(’16) A. PC. 117, iwpra ; Sheoparsan v. ! 
Hamnandan (1916) 4.3 I.A 91, 43 Cal. 094, ! 
33 I.C. 914, (’10) A.PC. 78. j 

(f,) Rama Rao v. Raja of Pitapur (1919) 42 Mad. 
219, 49 I.C. 835 (’19) A.M. 871 , Madan 
Mohan Dkur v. Th kur Sree Sr«e IHatax 
Qour Jew (1933) 37 C. W. N. 801, 147 I C. 
1247, (’34) A.C. 30. 


(z) Haudagar Singh v. Pardip Sinih (1918) 45* 
I.A 21, 45 Cal. 510, 43 I.C. 484, (’17) 
A.PC. 190. 

(i) Janaki Ammal v. Karayanasami (1916) 43 
I A. 207. 39 Mad. 634, 37 I.C. 161, ('lOl 
A.PC. 117. 

(i) Desu Reddiar v. Srinivasa Rsddi (1936> 
59 Mad. 1052, (’30) A.M. 605. 



DECLARATION SUIT AGAINST WIDOW. 


225 


grant an injunction and will not take the management of the 
property out of her hands, unless the act complained of con- 
stitutes “ danger to the property ” (c). 

Where the estate comprises moveable property, and the widow has stiuandered part 
thereof, the Court may appoint a receiver to prevent further waste of the estate ; it may 
also direct transferees from the widow to replace the property where such property can 
be traced to their hands (d). If a widow gets bonds renewed in her own name in place of 
bonds that stood in her husband’s favour and the recitals of the new bonds show as if 
consideration was paid in cash, this is clearly waste as far as the reversioner is concerned, 
which will justify the reversioner in filing a suit against the widow for a permanent in- 
junction restraining her from withdrawing money deposited by her husband in the Post 
Office Savings Bank and directing her to renew the Post Office Cash Certificate of her 
husband or otherwise invest amounts due on them after maturity (e). See s. 179. 

No injunction can be granted to restrain a widow or other limited heir from making 
an unauthorized alienation of the estate which she represents. Mere alienation is not 
waste. In such a case the proper remedy is to bring a suit for a declaratory decree as 
stated in the next section (/). See s. 202, 

205. Declaratory suit in cases of unauthorised aliena- 
tions. — (I) Where a widow or other limited heir alienates 
property inherited by her in contravention of the provisions 
of section 178, the next reversioner, though he has no interest 
higher than a chance of succession, may institute a suit in her 
lifetime for a declaration that the alienation is not binding on tbe 
reversion, and if the facts are proved, tbe Court may pass a 
decree declaring that the alienation is not valid beyond the 
lifetime of tbe limited heir (ff) [ss. 175, 202]. As to bmitation, 
see sec. 208. 

(3) The reversioners, however, are not bound to institute 
a declaratory suit. They are not obliged to take any action 
in tbe bfetime of the limited heir. They may wait until the 
estate vests in them on her death, and then sue the alienee for 
possession of the property {h). As to limitation, see s. 209. 

If a widow, without the consent of the reversioners, alienates her husband’s pro- 
perty for purposes not sanctioned by law, the reversioners are entitled to bring a 


(f) Hurrydoss v. SreemuUy Uppoornah (1856) 
6 M.I A. 433. Kathama Nacthiar v. 
Doraisinga (1875) 2 I. A. 169, 191, 15 
Bene L. E. 83, 119 ; Renka v Bhola Nulh 
(1915) 37 All 177, 28 1 C. 896, ('15) A.A. 
207 ; Janaki Ammal v. R arayanasami 
(1916) 43I.A. 207, 39 Mad. 034, 37 I.C. 
161, (’16) A.PO. 117. As to prospective 
uaste, see Gliambhirmal v, Ramirmal 
(1897) 21 Bom. 747, at p. 749. See 
Specific Belief Act, 1877, s. 54, ill. (m). 

(d) Venkanna v. yaraMmhain (1921) 44 Mad. 

984, 06 T.C. 10, ('21) A.M. 234. 

(e) Sheo bas Pandey v. Met. Ram Kali (1936) 

11 Luck. 508, 158 I.C. 301, (’36) A.O. 4. 


(/) IsH Dut V. Hansbuti (1884) 10 Cal. 324, 332. 
10 I.A. 150. 

iff) QoUab Singh V. Kurun Singh 0S71) 14 M. 
I.A, 176 ; Jumoona v. Bamasoondari 
(1876) 1 Cal. 289, 3 I.A. 72 ; Isri Dut v. 
Hunsbuti (1883) 10 Cal. 324, 10 I.A. 
150; Saudagar Singh v. Pardip Singh 
(1913) 45 LA. 21. 45 Cal. 510, 43 I.C. 484, 
(*17) A.PC. 196, Specific Eelicf Act, 1877, 
s. 42, Ui (e). 

(A) Bijoy Oopal v. Krishna (1907) 34 Cal. 329, 
34 I.A. 87 ; Mesrarjo v. Oirjanundan (1908) 
12 C.W.'N’. 857 ; Raghubir Singh v. Jelhu 
(1923) 2 Pat. 171, 70 I.C. 290, (’231 A.P. 
130. 


204*205 



226 # 


HINDU LAW. 


Ss* declaratory suit against her (t)» See a. 202 and notes. As to the effect of a decree 
205-207 in a declaratory suit, aco a. 210 below. 

Court-fee . — A suit bj' a reversioner after the widow’s death for a declaration that 
an alienation made by the widow is not binding on him and for possession is governed 
by 8. 7 (b) of the Court-fees Act, 1870 [suit for possession], and not by s. 7 (iv) (c) [de- 
claratory suit]. The reason is that the reversioner is entitled to treat the aliena- 
tion as anuUity andis not bound to ask fora declaration that the alienation is vo\d{j). 


206. Will by widow of property inherited by her from 
her husband. — The execution of a will by a widow or other 
limited heir purporting to dispose of property in which she 
takes a limited interest affords, as a general rule, no sufficient 
reason for granting a declaratory decree {k). 


The reason is that a will made by a limited heir purporting to dispose of property 
inherited by her from, a male does not operate as an alienation of the property. It is no 
more than an assertion, and a declaratory suit does not lie for the setting aside of a mere 
assertion (1). For the same reason, where a widow execute.j a deed by which she ac- 
knowledgea that A.B. is the next reversioner, which in fact he is not, the Court will 
refuse to entertain a suit for a declaration by a person claiming to be the next reversioner 
that the deed is not binding on the estate i m). But where a widow claims property which 
really forms part of her husband’s estate as her absolute property, alleging that she got it 
under a will of her husband’s brother who had treated the property as his own, a suit 
will lie at the instance of the next reversioner for a declaration that the property belongs 
to the husband’s estate and that she has no more than a widow’s estate in it (n). 


207. Who may sue for injunction or for declaratory 
decree.— It is not the law that any one who may have a 
possibility of succeeding on the death of a widow or other 
limited heir can maintain a suit for an injunction or for a 
declaratory decree ; for otherwise every one in the line of 
succession, however remote, would have a right to sue. The 
right to sue rests in the first instance with the next reversioner. 
The reversioner next after him is not entitled to sue (o), unless — 


(i) the next reversioner refuses without sufficient 
cause to institute proceedings, or has concurred in 
the act alleged to be wrongful, or has colhided 


U) 

U) 

(i) 


m 

(m) 

(n) 

(o) 


(1883) 10 Cal. 324, 332-333, 10 LA. 150, 150 
157, supra. 

Ram Sumran v. Oovind Das (1023) 2 Pat 
125, es I.C. 700, ('22) A.P. 815 (F.B 1. 

Thakurain Jaipal v. Ehaiya Inder (1904 
31 I.A. 87, 28 All. 23S ; Umrao Kunvaai 
V. BadH (1915) 37 All. 422, 29 I.C. 302 
(’15) A.A 262 -Oangaw. Sanhai Lai (1919 
41 All. 154, 47 I.C. 222, ('18) A A. 15 ; Da, 
Mai V, Bam Chmd (1923) 4 Lah. 118 
76 I.C. 946, (-23) A.L. 406. 

Rajah Nilmoney Singh v. Kallu Chum (1874' 
23 W.B. 150. 


Das Mai v. Ram Chund (1923) 4 Lali 118 
76 I.C. 946, (’23) A.L 40B. 

Surayya v. Subbamma (1920) 43 Mad. 4 53 
I.C. 498, (’20) A.M. 361. 

Rani Anand Koer v. The Court of (Fards 


(1881) 6 Cal. 764. 8 I.A. 14 ; Meguh 
Rai V. Bam Ehelamn (1913) 35 All. 328, 
9 I.C. 814 ; Qummanan v. Jahaumra 
(1918) 40 All. 518; 46 I. C. 186, ('18) 
A.A. 392; Ahinash v. Earinath (1005) 
32 Cal. 62 [not cood law on the point 
of limitation, see s. 208); Mussammal 
Viranwah v. Kundan Lai (1928) 9 Lah. 
106, 112 I.C. 35, (-28) A. L. 267 ; Shankar 
V. Zaghoba (1939) Nag. 383 ; Malru Mai 
V. Mehen Kunwar (1940) All. 416, 189 
I.C. 600, (MO) A S. 311, (1940) A.L.J. 
403. 13 I.li. 106 ; Lalta Prasad v. 
Dwarka Prasad (1941) All. 598, 195 I.C 
492. (’41) A.A. 313, (1041) A.L.J. 392; 
Raja Seetlo Raksh Singh v. Balm Surrendra 
Bikram Singh (1943) 18 Lucl:. 521, 205 
I.C, 585, (’43) A.O. 08. 



INJUNCTION AGAINST WIDOW. 


227 


■with the limited heir, or is precluded from suing 
hy his own act or conduct (p), or is from poverty 
not in a position to sue (q ) ; or 

(ii) according to the Calcutta (r), Madras (s), and 
Patna (t) decisions, the next reversioner is herseK 
a female and entitled to a limited interest only. 
The same view has been taken by the Allahabad 
High Court in some cases (m), in other cases it has 
been held that the mere fact that the next rever- 
sioner is a female does not give any right of suit to 
the more distant reversioner, unless it be shown 
that she was acting in collusion -with the widow 
or other limited heir whose act is impeached (v). 

In one case it was hei^ that this rule is not absolute and that there may be eircum- 
stances under vliich the distant reversioner may be permitted to sue where the immediate 
reversioner is a female and in that case the declaration was granted (w). 


Parties to suit .- — In a case where a suit is brought by a remote reversioner, upon a 
plaint stating the circumstances under which he has such claims to sue, the Court must 
exercise a judicial discretion in determining whether he is entitled to sue, and would 
probably require the next reversioner to be made a party to the suit. Where the plaintiff 
brought the suit claiming to be the next reversioner and the whole case was tried by the 
lower courts which declared that the alienation by the widow was not valid beyond her 
lifetime and in Second Appeal the High Court found that on account of Act II of 1929, 
the plaintiff was not the nearest reversioner, a sister’ .s son having come into existence 
after the institution of the suit, it was held that the suit ought not to be dismissed but 
the case should be sent back for disposal after making the sister’s son a party and getting 
a proper guardian appointed for him {x). But where the plaintiff sues as the next 
reversioner, it is improper to read into the plaint an allegation that he is bringing the 
suit as a remote reversioner because the nearer reversioners have either precluded them- 
selves from bringing the suit or have refused to do so (y). 

Where a suit is brought by the next reversioner, there is nothing to preclude a remote 
reversioner from joining or asking to be joined in the suit, or even obtaining the conduct 


(j)) K'Coer Goolab Singh v. iino Kurun Singh 
(1871) 14 M.I.A. 176 ; Rao Kvrun Singh\. 
Ifawab Mahomed (1871) 14 M I A. 187, 
193 ) Bakhiattar v. Bhagwana (1910) 
32 All. 176, 6 I.C. 270 [gift ivith cousent 
of next reversioner] ; Raja Dei v. Umed 
Singh (1912) 34 All. 207, 13 I.C. 632; 
Ohisiaican v. Mst. Raj Kumniari (1921) 
43 All. 534, 03 I C. 530, (’21) A.A. 33 
[sale with consent of next revprsioncr| ; 
Bhikaji v. Jagannath (1873) 10 Bom. 
H.C. 351 [waiver] 

(j) Mata Prasad v. yageshar Sahax (19251 52 
LA. 398, 47 AIL 883, 01 I.C. 370, ('25) 
A.PC. 272. 

(r) Abinash v. Harinath (1905) 32 Cal. 62. 

(j?) Chidambara v. Nallammal fl910) 33 Mad. 
410, 5 I.C. 164. 

(0 Ramyad v. Ramhhxlhara (1919) 4 Pat. L, J. 

734, 64 I.C. 357, (*20) A.P. 514. 

(ti) Balgobind v. Ram Kumar (1884) 6 All. 431 ; 


Lakhpati v. Rambodh (1915) 37 All. 350, 
362, 29 I.C. 218. (’15) A.A. 255. 

(c) Iskwar V, Janki (1893) 15 All, 132 ; ikftuiari 
V. Malki (1884) 6 All. 428 ; Qumanan v. 
Jahangira (1918) 40 All. 518, 46 I.C. 186, 
(’18) A.A. 393. See also Tekchand v. 
5oman 5in<7ft (1916) Punj. Rec. No. 27, 
34 I.C, 831, (’16) A.L. 265. 

(w) Deoki v. Jwala Prasad (1928) 50 All. 678. 

113 I.C. 737, (’28) A.A. 216. 

(z) Lakshmi v. AnaxUarama (1937) Mad. 948, 
171 I, C, 7, (’37) A.M. 09'). 
ill) Rani Anand Ko&r v. The Court of Wards 
(1881) 6 Cal. 764, 772-773, 8 I.A. 14; 
Meghit Rai v. Ram Khelaioan (1913) 86 
All. 326, 19 I.C. 814 ; Jhandu v. Tarif 
(1915) 37 All. 45, 27 I.C. 892, (’14) A.PC. 
34 ; Sita Saran v. Jhgat (1927) 49 All. 815, 
102 I.C. 296, (’27) A.A. 811 ; Miissammat 
Viranwali v. Kundan Lai (1928) 9 Lah. 
106, 112 I.C. 35, (’28) A.L. 267. 


S.207 



228 


HINDU LAW. 


Ss. of the suit on proof of laches on the part of the plaintiff or collusion between him and the 

207,208 widow ( 2 ), as for instance, an attempt to compromise the suit with the widow in appeal 
after the lower court had passed a decree granting the declaration prayed for in the suit (a) . 

Minor reversioner, — The fact that the next reversioner is a minor will not justify 
a suit by a more distant reversioner. The reason is that a minor can bring a suit by 
a next friend (6). 

Next reversioner refusing to sue. — Where a Hindu was induced by his wife to execute 
a fictitious mortgage of his property to her nephew, and she, after his death, refused to 
take any action in the matter, it was held that the next reversioner was entitled to bring 
a suit for a declaration that the mortgage was fictitious and did not affect his interest 
in the property (c). 

Persons eniiiled to impeach unauthorized alienations by widow, — See sec. 185A. 

208. Declaratory suits and limitation. — (i) A suit by 
a reversioner for a declaration that an alienation made by a 
widow or other limited beir is void except ^or ber life must be 
brought within 12 years from the date of the alienation [the 
Indian Limitation Act, 1908, Sch. I, art. 125] but a suit 
by a Hindu for a declaration that the alienations made by a 
Hindu female who has a life estate by virtue of a transfer or 
grant inter vivos or by virtue of a bequest are void and are not 
binding on him as the next reversioner of the last male owner is 
governed by Art. 120 and not by Art. 125 (d), differing from 
the Lahore High Court (e). 


(2) Such a suit is a representative suit on behalf of all 
the reversioners, then easting or thereafter to be born, and 
all of them have but a single cause of action, which arises on 
the date of the alienation. Hence if no suit is brought by the 
existing reversioners within 12 years, and their right to sue is 
barred by limitation, reversioners thereafter horn are equally 
barred (/). 


It was held in some oases that because reversioners derived title from the last owner 
and not from each other, they had each an independent cause of action. But this view 
was pronounced to be unsound by Sir Barnes Peacock so far back as 1868 (g). The 
ground of the decision was that the right of the next reversioner to bring a declaratory 


(r) VenkatanarayaM v. Subbamal (1015) 42 
I. A 125, 38 Mad. 406, 29 I.C. 298, (’15) 
A.PC. 124. 

(a) Ookulananda HaricJiandan v. lewar Chhotrai 
(1936) 15 Pat. 379, 166 I. C. 342, (’o?) 
A. P. 11. 

(5) Eah Charam v. Bageshra (1925) 47 All. 020, 
89 I.C. 374, (’26) A.A. 585. 

(c) Suraj Mai v. Kalhwa (1923) 45 All. 255, 76 
I.C. 983, (’23) A.A. 161. 

(-1) Kanhya Lai Misiir v. Mst. Sira Sibi (1036) 
15 Pat. 151, 163 I.C. 940, (’36) A. P. 323. 

(«) Mt. Natidan v. Wazira (1927) 8 l/Oh. 215 , 


Mt. H idyavati v. Mt. Rahmat Bi (’37) 
A. Lah. 760. 

(/) raramma v. Qopaladaeayya (1918) 41 Mad. 
659, 461. C. 202, (’19) A.M. 911 (F.B.), 
approved, and ratio decidendi followed In 
Kesho Prasad v. tiheo Pargash (1922) 44 
Al). 19, 29, 64 I.C. 248, (’22) A.A. 301 
(F.B.) ; Chkaganram v. Bai Motigavri 
(1890) 14 Bom. 1900 ; Jamnabi v. Dharsey 
(1002) 4 Bom. L.Il. 893 [adoption] ; 
Chxragh D\n v, Abdullah (1925) 6 Lai). 
405, 90 I.C. 1022, (’25) A.L. 654. 

(ff) iV’oWji Chunder v. Issur Chunder (1808) 9 
W.R, 505, 509. 



SXJIT BETWEEN REVERSIONER AND ALIENEE, 


229 


Bait is based on the danger to the inheritance common to ail the reversioners, presumptive 
and contingent alike, and there is therefore one cause of action common to them all (A). 
See see. 202. 

The High Court of Calcutta has held that what bars the next reversioner does not 
bar the contingent reversioner (i). In one of these eases a daughter while a min or 
succeeded to her father’s estate. X. Y. was appointed guardian of her property. In 1897 
X. Y. sold one of the properties to A.B, The daughter did not take any steps to set 
aside the alienation after she attained majority. In 1916 the plaintiff who was the 
minor son of another daughter sued A.B. for a declaration that the sale was not binding 
on the estate after the death of the daughter, i.e., his mother’s sister. It was held that 
art. 120, and not art. 125, of the Indian Limitation Act, 1908, applied to the case, and 
that the suit was not time- barred (j). 

209. Eeversioner’s suit for possession and limitation . — A suit 
by reversioners, entitled to succeed to the estate on the death 
of a widow or other limited heir, for possession of immoveable 
property from an alienee from her must be brought within 
twelve years from her death [the Indian Limitation Act, 1908, 
Sch. I, art. 141], and of moveable property, within six years 
from that date {k) \ib., art. 120]. See sec. 205 (2). 

The reversioner may sue for poaaeeaion without suing to have the alienation set 
aside. The reason is that he is entitled to treat the unauthorized alienation as a nuUiiy 
without the intervention of any Court(f). 

Article 141 of Schedule I of the Indian Limitation Act, 1908, referred to in this 
section provides a period of 12 years for a suit for possession of immoveable property 
by a Hindu entitled to possession of such property on the death of a Hindu female. In an 
award arising out of a dispute between a widow and her husband’s brothers, certain 
properties were given to her for maintenance and it was provided that she should forfeit 
her right to the properties if she became unchaste. The widow became unchaste in 1910 
or 1912 and died in 1929. It was held that a suit brought in 1932, that is, wit hin 12 years 
after her death was in time under art. 141 on the ground that the reversioners are entitled 
to waive the benefit of the forfeiture (m). For an application of this art. 141, see sec. 201. 

210. Decree in suit between next reversioner' and alienee 
and res judicata. — A suit by the next reversioner against the 
widow or other limited heir and an alienee from her for a 
declaration that the alienation is not binding on the reversioner 
is a representative suit on behalf of all the reversioners, and 
a decree fairly and properly passed in such a suit, whether it is 
for or against the next reversioner, operates as res judicata 
between not only the next reversioner but the whole body of 
reversioners on the one hand and the alienee and his represen- 


(li) Mata Prasad v. Nageshar Sahai (1925) 62 
I.A. 398, 410-411, 47 All. 883, 893-894, 
91 I.C. 370, (*25) A.PC. 272. 

(i) AbiTiash v. Harinath (1905) 32 Cal. 62 ; Das 

Ram V. Tirtha Nc^ (1924) 51 Cal. 101, 
108-109, 81 I.C. 522, (’24) A.C. 481. 

(j) (1924) 51 Cal. 101, 81 I.C. 622, (’24) A.C. 

481, pupra. 

(i) Bijoy Oapal v. Krishma (1907) 34 Cal. 329, 
34 I. A. 87 ; Bancihordas v. Parvaiibai 


(1899) 23 Bom. 725, 26 I.A. 71 ; Ram Dei 
V. Abu Jafar (1905) 27 All. 494 ; Rakhma- 
bai V. K^shav (1907) 31 Bom. 1. 

(0 (1007) 34 Cal. 329, 34 I.A. 87, supra ; Obala 
Kandama v. Kandasami (1924) 51 I. A. 
145, 152, 47 Mad. 181, 189, 79 I. C. 961, 
(•24) A.PC. 56. 

(m) Rtuhik Lai v, Radha Dulaiya (193?) All. 
424, 169 I.C. 586, (’37) A.A. 268. 


2(^219 



230 


HINDU LAW. 


S». tatives on the other (n). This principle applies also when a 
210, 211 creditor obtains a decree against a widow and attaches pro- 
perties inherited by her from her husband ; in such a case 
if the reversioner brings a suit for the release of the property 
on the ground that debts were not incurred for legal necessity 
and therefore not binding on the reversion, a fresh suit by him 
for a declaration that the sale of the property in execution is 
not binding on him is res judicata (o). 

IllustrcUiona. 

(a) A Hindu dies leaving a widow, a brother, and a paternal uncle. The widow 
sells property inherited by her from her husband to A, and delivers possession of the 
property to him. The brother a.s next reversioner sues the widow and A for a declaration 
that the sale is not valid beyond the widow’s lifetime, and a decree is passed in favour of 
the brother. After the decree the widow dies, and then the brother. The uncle de- 
mands possession of the property from A, but A fails to deliver possession. The uncle 
sues A for possession. A is precluded from contending that the sale was valid, and 
the uncle is entitled to possession. 

(b) If in the case put in ill. (a), the brother’s suit is dismissed and the alienation 
is upheld, the uncle will be precluded from bringing a fresh suit against A for a declaration 
that the alienation is not binding on him. The decree of dismissal operates as res judicata 
against the uncle, who is the ultimate reversioner, though he was not a party eo nomine 
to the brother's suit, and the alienee is entitled to the benefit of the decree. It may seem 
hard at first sight that a decree against the next reversioner, whose interest is merely 
presumptive and may never mature as when ho dies before the widow, should operate 
as res judicata against the ultimate reversioner at the widow’s death, for the decree 
mig ht have been obtained by fraud or collusion. But the hardship is not real, for the 
decree in such a case may be set aside at the suit of the ultimate reversioner (p). 

A decree against the next reverisioner in respect of an alienation by the widow of 
property X to A does not bar a suit by the reversioner in respect of an alienation of 
property T to B (?). 

For the reason of the rule contained in this section, see s. 202. The same principle 
applies to a suit by the next reversioner for a declaration that an adoption is invalid. 
If a decree is passed against him, it is binding on the ultimate reversioner (r). The 
matter is really governed by the Code of Civil Procedure, 1908, s. 11, Expln. 6, which 
relates to res judicata in a representative suit. As to decrees against limited heirs, see 
s. 199. 


211, Adverse possession by widow. — (1) Property 
acquired by a Hindu widow or other limited heir by adverse 
possession [Indian Limitation Act, 1908, sch. i, art. 144], 
of ■whicb she took and retained possession absolutely in her 


(n) Kesho Prasad v. Sheo Pragash (1024) 51 I,A, 

381, 46 All. 831, 82 I.C. 062, {’24) A. 
PC. 247, [decree, for next reversioner], 
affg. (1922) 44 All. 19, 64 I.C. 248 (’22) 
A. A. 301 (F. B.) ; Pramatka v. Bhuban 
(1922) 40 Cal. 45, 64 I.C. 980, ('22) A.C. 
321, [decree against next reversioner]; 
Khair Muhammad v, Umar (1024) 5 
Lah. 421, 84 T. C. 477, ('25) A. L. 89, 
[decree against next reversioner], 

(o) Met. Seethabai v. Hari (1938) Kag. 498. 


(*38) A. N. 401. 

(p) Kesho Prasad V. Hheo Pragash (1D24) 51 I.A 
381, 46 All. 831, 82 1. C. 002, (’24) 
A.VC. 247. 

{q) Thalar Singh v. Mst Uttam (1929) 10 Lah. 
013, 118 I.C. 449, (’29) A.L. 295. 

(r) Chxnivolu v. C'hiruvolu (1906) 29 Mad. 300 
[F.B.]; Gokulanatid Harickandan v. Jswar 
Chbotrai (1936) 15 Pat. 379, 108 I.C. 342, 
(’37) A. P. 11. 



ADVERSE POSSESSION BY WIDOW. 


231 


own right, for twelve years or upwards is her stridhana, and 
she may dispose of it by deed or will ; on her death intestate 
it descends to her stridhana heirs (s). But if the property 
acquired by adverse possession was claimed and held by her 
not in her own right, but as a widow representing her husband’s 
estate, it is not her stridhana, but an accretion to her husband’s 
estate, and in it she takes no more than a widow’s estate, and 
it descends on her death to her husband’s heirs (i). The 
possession of a person who is not the widow of the last male 
owner but is the widow of an another member of the family 
is prima facie adverse but if she claims the estate only by 
inheritance she must be deemed to be claiming only a limited 
estate (i^). Thus, where a Hindu widow in the enjoyment 
of her husband’s estate as heir remarried and had thereby 
forfeited her title Ifo the estate, but continued in possession 
without asserting any change in the character of her possession, 
she acquires title by prescription only to a widow’s estate and 
not to an absolute estate (v). 

It has according!}^ been held that where a Hindu dies leaving a son and a widow 
and the widow who is entitled to maintenance only out of her husband’s estate takes 
and retains possession of property belonging to her husband’s estate adversely to the 
son, the property is ber stridhana, unless it is clearly shown that when she took posses- 
sion, she professed to do it as claiming only the limited estate of a widow. “ The son 
having the title, she could not take possession excluding him, unless she intended to 
take an adverse possession, a possession to which she was not in any way entitled” {w) 
Similarly where a widow takes possession of the estate of her husband’s uncle to which 
her husband’s grandsons are entitled (a;), or takes possession of the estate of her husband’s 
brother to which the brother’s heirs are entitled (y), and holds it adversely against the 
rightful heirs, the property is her stridhana. In a Privy Council case where a Hindu 
widow executed a deed of gift of property which she held absolutely under a will from 
her husband in favour of her daughter, which gift was not valid as the deed was not 
registered, but the daughter remained in adverse possession of the property for upwards 
of 12 years, it was held that the property was her stridhana and that it did not pass 
on her death to her father’s heirs ( 2 ). 

(2) The possession of a portion of the joint family estate 
by the widow of a member of a joint Hindu family governed by 


(s) Lacchan Kumvar v. Manorath Ram (1895) 
22 Cal. 445 [P. C ] : Varada PiUai v. 
J eeveraihnammal (1920) 43 Mad. 244, 46 
I A. 285, 53 I.C. 901, (’191 A.PC. 44;5an5t- 
dhar V, Dulhatia (1925) 47 All. 505, 87 I.C. 
235, (’25) A. A. 483 ; Rikhdeo v. SnJehdeo 
(1927) 49 All. 713, 102 I.C. 175, (’28) 
A. A. 45 : Suraj Balli v. Tilakdhari (1928) 
7 Pat. 163, 107 I.C. 151, (’28) A,P. 220; 
Musaminat Malnka v. Pateshar (1926) 1 
Luck. 273, 295-290, 96 I.C. 672, (’26) A. 
0. 371. 

(0 Lajwanti v. Safa Chand (1924) 51 I. A. 171, 
6 Lah. 192, 80 I.C. 788, (’24) A.PC. 121; 
Patipal Singh v. Rampal Si7igh (1940) 15 
Luck. 112, 185 I.C. 157, (’40) A.O, 63. 


(m) Ckandrabali Pathak v. Bhagwanprasad 
Pande (1944) All. 533. 

(i>) Parhati v. Ram Prasad (1932) 7 Luck. 320, 
141 I.C. 831, (’33) A.O. 92. 

(«/) Lacchan Kanwat v. Manorath Ram (1895) 22 
Cal 445, 449; (1925) 47 AU. 505, 87 I.C. 
235, (’25) A. A. 483, supra. 

(ar) Rikdeo v. Sukhdeo (1927) 49 AU. 713, 102 
I.C. 175, (’28) A, A. 45. 

(y) Smaj BaJli v. TilaKdhari (1928) 7 Pat. 163, 

107 I.C 151, (’28) A P. 220 

(z) Varada PUlai v. Jeevcrathnammal (1920) 46 

I.A, 285, 43 Mad. 244, 53 I C. 901 ; Mst. 
Maluka v. Pateshar (1926) 1 Luck. 273, 96 
I.C. 672, (*26) A. O. 371, supra. 


8.211 



232 


HINDU LAW. 


S.211 


the Mitakshara law, as of right, for twelve years or upwards, 
as for instance, where mutation has been effected in her name 
and she remains in continuous possession, bars the claims of the 
other members of the family (a). The reason is that on the 
death of an undivided member of a joint family, the joint 
family property passes to the other members of the family by 
survivorship, and the widow is not entitled to anything more 
than maintenance out of the joint family property ; her 
possession, therefore, would be adverse to the other membei;s 
unless it was in lieu of maintenance under an arrangement 
with them (6). See sec. 133. But a widow having obtained 
possession of property under an arrangement with her husband’s 
brothers granting her a widow’s estate, cannot by any act or 
declaration of her own acquire title by prescription. Cf. S. 
176 (7) (c), ^ 


(а) Pandit Adya Shankar Tivari v iigt. Chandra- 

ealh (1935) 10 Luck. 35, 160 I. C. 519. 
('34) A. 0 . 265. 

(б) Sham Eoer v. Dah Koer (1902) 29 I.A. 132, 

29 Cal 664. SaigUT Pra^hadv. EishoreLal 
(1919) 46 I. A. 197, 42 All. 152, 65 I. C 
486, (‘19) A.l’C. 60 ; Uman Shankar v. 


Musammat Aisha (1923) 45 AH. 729, 74 
I.C. 869, (’24) A. A. 88 ; Kali Charan v. 
Pian (1924) 46 All. 769, 83 I.C. 754, (’24) 
A.A. 740. 

(c) RashikUU v. Radha Vvlaiya (1937) All. 
424, 169 I.C. 586, (’37) A.A. 268. 



233 


CHAPTER XII. 


COPARCENERS AND COPARCENARY PROPERTY— 
MITAKSHARA LAW. 

1. Coparcentrs — eece. 212-217, 

2. Coparcenary property — sees. 218-234. 

3. Management and enjoyment of Coparcenary property — aeca. 233-252. 

4. Alienation of Coparcenary properly — aeca. 253-256. 

5. Alienation of undivided coparcenary intereat — aeca. 256-266. 

6. Selling aaide alienationa — aeca. 267-270. 


I. COPARCENERS. 

212. Joint Hindu family. — {1) A joint Hindu family con- 
sists of all persons lineally descended from a common ancestor, 
and include their •wiYes and unmarried daughters (d). A 
daughter ceases to he a member of her father’s family on 
marriage, and becomes a member of her husband’s family. 

(2) The joint and undivided family is the normal con- 
dition of Hindu society. An undivided Hindu family Is’ drdP 
narily joint not only in estate, but also in food and worship (e). 
The existence of joint estate is not an essential requisite to 
constitute a joint family and a family which does not own any 
property may nevertheless be joint (/). 'Where there is joint 
estate, and the members of the family become separate in estate, 
the family ceases to be joint. Mere severance in food and 
worship does not operate as a separation {g). 

Posseesion of joint family property is not a necessary requisite for the constitution 
of a joint Hindu family. Hindus get a joint family status by birth, and the joint family 
property is only an adjunct of the joint family (A). 

Almost every Hindu family has a family idol which is the joint property of the family. 
As to the worship of family idola on partition, see notes to s. 303. 


Ss. 

212,213 


213. Hindu coparcenary. — A Hindu coparcenary is a 
.'much narrower body than the joint family. j^^It includes only 
those persons who acquire by birth an interest in the joint or 
coparcenary property (i). These are the sons, grandsons and 


(d) Commissioner of Income Tax v. iuzmi- 
narayan (1935) 59 Bom. 618, 37 Bom. 
L. E. 692, 159 I C. 424, (’35) A.B. 412. 

(c) Sri Raghunadha v. Brozo Kxshoro (1876) 
1 Mad. 69, 81, 3 I A. 154. 

(/) Janakiram v. Nagamony (1926) 49 Mad. 98, 
103, 115, 93 T C. 662, (’26) A M, 273 , 
Laldas v. Molibai (1908) 10 Bom. L. R. 
176 , Pandit Mohanlal v. Pandit Ramdaycd 


(1941) 16 Luck. 708, 194 I.C. 61, (’41) A.O. 
331. 

(ji) Chotedhry Oanesh Dutt v. Jeivach (1904) 
31 CaJ. 262, 31 LA. 10. 

(A) (1926) 49 Mad. 08, 103, 115, 03 I.C. 662, 
(’26) A M. 273, supra 

(i) Commissioner of Income Tax v. Xtermi- 
narayan (1935) 59 Bom. 618, 37 Bom. 
L. E. 692, 159 I C. 424, (’35) A.B. 412. 



234 


HINDU LAW. 


S. 213 great-grandsons of the holder of the joint property for the 
time being, in other words, the three generations next to the 
holder in unbroken male descent. See s. 217. 



tion between ancestral proper ty and separate nrop crtv. Property inherited by a Hindu 
from his father, father’s father or father’s father’s father, is property. Property 

inherited by him from other relations is his separate property. The essential feature of 
ancestral property is tliat if tlie person inheriting it has sons, grandsons or great-grand- 
sons, they become joint o\v7iers with him. They become entitled to it by reason of their 
birth (j). Thus if -.4, who has a son inherits property from his father, it becomes ances- 
tral in his hands, and though .4, as the head of the family, is entitled to hold ojid manage 
the property, B is entitled to an equal interest in the property with his father (^4), and 
to enjoy it in common with him. can therefore Testrain his fathe r froyn ahenali jut it 
except in the special cases where such alienation is allow^ by law, and he ca n enforce 
partition of i t against his fath er. On his father’s death^he take s the property by r ight 
©f ^rvtvorsmp &nd not by svccesnon. It is otherwise, however, as to separate property. 
A man is the absolute owmer ol property inherited by him from his brother, uncle, etc. 
His son does not acquire an interest in it by birth, and on his death it passes to the son 
not by SMrvivorship but by succession. Thus if A inherits property from his brother, it is 
his separate property, and it is absolutely at his disposal. His son B acquires no interest 
in it by birth, and he cannot chim. a partition of it, nor can he restrain A from alienating 
it. The same rule applies to the self -acquired property of a Hindu, it is of the uty ost 

importance to remember that separate or self-acquire d prope rty, once it desce nds J o the 
m ule issue^ the ownerf beeves dMstrdT in tue hands of the male issue who inherit s it. 
Thus if A owns separate or self-acquired property, it will pass on his death to his son B 
as his heir. But in the hands of B it is ancestral property as regards his sons. The 
result is that if B has a son <7, C takes an interest in it by reason of his birth, and he can 
restrain B from alienating it, and can enforce a partition of it as against B. 

Ancestral property is a species of coparcenary property. We have stated above 
that if a Hindu inherits property from his father, it becomes ancestral in his hands as 
regards his son. In such a case it is said that the son becomes a coparcener with the 
father as regards the property so inherited, and the coparcenary consists of the father and 
the son. But this does not mean that a coparcenary can consist only of a father and bis 
sons. It is not only the sons, but also the grandsons and great-grandsons who acquire 
an. interest by birth in the coparcenary property. Thus if A inherits property 
from his father, and he has two sons B and C, they both become coparceners with him 
as regards the ancestral property. A, as the head of the family, is entitled to hold the 
property and to manage it, and hence he is called the manager of the property. If B has 
a son D, and C has a son B, the coparcenary will consist of the father, sons, and grand- 
sons, namely A, B, C, D and E, as shown in the accompanying diagram. Further, 

if D has a son F, and E has a son G, the coparcenary will 
consist of the father, sons, grandsons, and great-grand- 
sons, in all it will consist of seven members. But if 
F has a son X, X does not become a coparcener, for a 
coparcenary is limited to the head of each stock, and 
his sous, grandsons, and great-grandsons. X being the 
great-great-grandson of A, cannot be a member of the 
coparcenary so long as A, the holder of the joint property, 
is alive. 

Sundar Lai v. Chhitar Mai (1907) 29 All. 1 ; A.nandrao v. Vasantrao (1M7) 0 Bom. L, R. 505 [P.G.j. 


I 

B 

I 

D 

I 

F 

I 

X 


C 

I 

F 

I 

G 




COPAECENERS. 


235 


214. Formation of coparcenary. — ( 1 ) The conception of a 
joint Hindu family constituting a coparcenary is that of a 
common male ancestor with his lineal descendants in the male 
line within four degrees counting from and inclusive of such 
ancestor (or three degrees exclusive of the ancestor). No 
coparcenary can commence without a common male ancestor, 
thoiigh after his death it may consist of collaterals, such as 
brothers, uncles and nephews, cousins, etc. 

(2) A coparcenary is purely a creature of law ; it cannot 
be created by act of parties, save in so far that by adoption a 
stranger may be introduced as a member thereof {k). 

Illustrations. 

(aj A coparcenary may consist entirely of collateral relations. Thus suppose a 
coparcenary to consist of A and his sons B and C. After A's death, if B and C continue 
joint, the coparcenary will •onsist of two collateralSy that is, the brothers, B and C. 

(b) The following diagram shows a coparcenary consisting of several families. 
A with his three sons B, C and B and their sons and grandsons constitute the ‘ main ” 


_\ 1 —I , 

j i 1- ^ J i j 3. 


-family. B with his two sons E and F, C with his son Q, D with his sons H and / and 
his grandsons J and A, and I with his sons J and K, constitute “branch” families. 
All the families have one common ancestor A. Each branch family has also its own 
head, namely B, C, D and /, On A’s death the coparcenary will consist of the three 
brothers By C and D and their male issue. On the death of B and C, the coparcenary 
will consist of D, his ne'phewsEy F and Qy and his male issue Hy /, J and K who stand 
in the relation of cousuw to F and G. 

Genesis of a coparcenary . — A coparcenary is created in some such way as the follow- 
ing : — A Hindu male A, who ha.? inherited no property at all from his father, grandfather, 
or great-grandfather, acquires property by his own exertions. A has a son By B does not 
take any vested interest in the self-acquired property of A during A’s lifetime, but on A’s 
death he inherits the self-acquired property of A. If B has a son Gy C takes a vested 
interest in the property by reason of his birth, and the property inherited by B from his 
father A becomes ancestral property in his (.B’s) hands, and B and C are coparceners as 
regards the property. If B and C continue joint, and a son D is born to C, he enters 
the coparcenary by the mere fact of his birth. And if a son E is subsequently born 
to D, he too becomes a coparcener. But E's son cannot be a coparcener while B is alive, 
he being more than four degrees removed from B. 

(4) Sudarsanam v. Narasimhulu (1902) 25 Mad. 149, 154>157. 


S.214 



236 


HINDU LAW. 


215. Coparcenary not limited to four degrees from common 
ancestor. — Though every coparcenary must have a common 
ancestor to start with, it is not to be supposed that every 
coparcenary is limited to four degrees from the com7non ancestor. 
A member of a joint family may be removed more than four 
degrees from the common ancestor (original holder of copar- 
cenary property), and yet he may be a coparcener. Whether 
he is so or not depends on the answer to the question whether 
he can demand a fartition of the coparcenary property. If 
he can, he is a coparcener, but not otherwise. The rule is that 
partition can be demanded by any member of a joint family 
who is not removed more than four degrees from the last holder, 
however remote he may be from the common ancestor or 
original holder of the property. When a member of a joint 
family is removed more than four degrees from the last holder, 
he cannot demand a partition, and therefore he is not a copar- 
cener [ills, (a) and (b)]. On the death, however, of the last 
holder, he would become a member of the coparcenary, if he was 
fifth in descent from him, and would be entitled to a share on 
partition, unless his father, grandfather and great-grandfather 
had all predeceased the last holder. The reason is — and here 
we have another important rule bearing on the subject in hand — 
that whenever a break of more than three degrees occurs 
between any holder of property [A in ill. (d)] and the person 
who claims to enter the coparcenary after his death [E in 
ill. (d)], the hne ceases in that direction [i.e., the direction of C, 
Dl and E in ill. (d)] and the survivorship is confined to those 
collaterals and descendants [D in ill. (d)] who are within the 
limit of four degrees (Z) [ills, (c) and (d)]. 

IHuslrationa, 

(a) A inherits certain property from his father X. He has a son B and a grandson 

C, both members of an undivided family. A, B and C are copar- 
ceners. A son D is then born to C. D becomes a coparcener 
by birth with A, B and C. Subsequently a son E is born to 

D. E is not a coijarcener, for being fifth in descent from A , he 
cannot demand a partition of the family property. On A’s death, 
however, B will become the head of the joint family and E will 
step into the coparcenary as the great-grandson of B, though he 
13 fifth in descent from A, the original holder. Likewise, on B's 
death, F [E’s son) will step into the coparcenary as great-grand- 
son of C, the head of the family for the time being, though he is 
sixth in descent from A, the original holder. 

(I) Moro Vuhvancitb v. Oonesh (1873) 10 Bom. H. C. 441, Ycnumula v. Yenumula (1870) 6 Jtad. H. C.93. 


A 

I 

B 

1 

C 

I 

D 

I 

E 

I 

F 



COPAECENEBS. 


237 


Note that the property inherited by A from his fcUher is ancestral in his hands. 
He is not the ovriter of the property ; he is entitled merely to hold and manage the pro- 
perty as the head of the family for and on behalf of the family. The ownership of the 
property is in the joint family consisting of himself and his three descendants B, C and 
D. They are all co-owners, or, as the expression goes, coparceners. On A’s death 
the family being still joint, the management of the property will pass to B as senior 
member of the family, in other words, B will be the /.aria or manager of the joint family 
and he will hold the property on behalf of himself and his three descendants, 0, D and E. 
Likewise, on B's death the i)roperty will vest in C and his three descendants D, E and 
F as coparceners. It may thus go on for generations until the family becomes divided 
or becomes extinct on the death of the sole surviving coparcener. 

fb) Suppose a coparcenary consisted originally ot A, B, C, D, E, F, Q and H, with 
A as the common ancestor. — Suppose A dies first, then B, then 
C, then D, and then E, and that 0 has then a son I, and H has 
a son J, and J has a son K. On E'b death the coparcenary will 
consist of F, Q, H, I, J and K. Suppose that 0, H and J die 
one after another, and the only survivors of the joint family are 
F, I and K. Are I and K coparceners with Ft Yes, though 
1 is fift/i in descent from A^ and K is sixt/i in descent from A. 

he reason is that either of them can demand a pariilion of the 
family property from F. Here the coparcenary consists of 
three collaleraU, namely, F, 1 and K (m). 


I 

B 


1 

C 


D 

1 

G 

I 

1 


I 

E 

1 

a 


1 

K 


(o) A inherits certain property from his father X. A has a son B, a grandson C, a 
great-grandson Z), and a great-great-grandson Jl. .d , B, C and Z) are copar- 
A ceners j E is not. On X’s death, however, E will step into the copar- 

* cenary of which B will become the head. On B's death after A, the 

I coparcenary will consist of C, D and E with G as the head. On C'a death 

(1 after A and B, the coparcenary will consist of D and E with D as the head. 

I Suppose now that B, C, and Z) all die in the lifetime of A . Hoes E become a 

ZJ coparcener with A 1 The answer is, no ; for E is fifth in descent from A. 

I The result is that A becomes the sole coparcener, and on his death the 

coparcenary property will pass by succession to his hews according to the 
order given in sec. 43. If A has left nearer heirs than E, the property will 
pass to them. If B is the nearest heir of A living at the time of A’s death, the copar- 
cenary property held by A will go to him as his heir. The law is that property held by 
a sole surviving coparcener passes on his death by succession to his heirs. 

(d) A inherits certain property from his father X. A has a son B, a grandson C, 
two great-grandsons D and Z>1, and a great-great-grandson E by D\, all 
members of a joint family. Here A, B, C, D and D\ are coparceners. 
E is not, being more than four degrees removed from A. Suppose 
B dies first. The coparcenary will now consist of A, C, D and Dl. The 
death of B does not introduce E into the coparcenary, for A being still 
alive, his great-great-grandson cannot be a coparcener with him. Suppose 
C dies next. The coparcenary will now consist of A, ZJ and D\. The 
death of C does not introduce E into the coparcenary, for A being still 
alive, his great-great-grandson cannot be a coparcener with him. Sup- 
pose Z>1 dies next. The coparcenary will now consist of A and B. The 
death of Dl does not introduce E into the coparcenary, for A being still 
alive, his great-great-grandson cannot be a coparcener with him. Suppose A dies next, 
D now becomes the sole surviving coparcener, and the joint family property will pass 


A 

1 

B 

1 

C 


h 


1 

Z>1 


S.215 


(m) More VUhwanath v. Qaneah (1873) 10 Bom. H. C. 444. 



238 


HINDU LAW. 


Ss. to D by survivorBhip. The, de/iih of A does not introduce E into the coparcenary. The 
215 , 216 reason is that at the time of death, jB’b father (Dl), his grandfather (C) and his great- 
grandfather (B), were all dead. 

Before leaving this subject, we may cite the following passage from Mayne’s 
“ Hindu Law and Usage ” {9th ed., s. 271), which deals with coparceners : — 

“ The question in each case will be, who are the persons who have taken an interest 
in the property 6y birth. The answer will be, that they are the persons who offer the 
funeral cakes to the owner of the property, that is to say, the three generations next 
to the owner in unbroken male descent. Therefore, if a man has living sons, grandsons 
and great-grandsons, all of these constitute a single coparcenary with himself. Every- 
one of these descendant is entitled to offer the funeral cake to him, and therefore every- 
one of them obtains by birth an interest in bis property. But the son of one of the great- 
grandsons would not offer the cake to him, and therefore is out of the coparcenary, so 
long as the common ancestor is alive. But while fresh links are continually being added 
to the chain of descendants by birth, so earlier links are being constantly removed from 
the upper end of the chain by death. So long as the principle of survivorship continues 
to operate, the right to the property will devolve from those who are higher in the line 
to those who are lower down. As each fresh member takes a share, his descendants 
to the third generation below him take an interest in that sha^e by birth. So the copar- 
cenary may go on widening and extending, until its members may include persons who 
are removed by indefinite distances from the common ancestor. But this is always 
subject to the condilion that no person who claims to take a share is more than three 
steps removed from a direct ascendant who has taken a share. Whenever a break of 
more than three degrees occurs between any holder of property and the person who claims 
to take next after that holder, the line ceases in that direction, and the survivorship is 
confined to those collaterals and descendants who are within the limit of three degrees.” 

216. Undivided coparcenary interest. — The essence of a 
coparcenary under the Mitakshara law is unity of ownership. 
The ownership of the coparcenary property is in the whole 
body of coparceners. According to the true notion of an 
undivided family governed by the Mitakshara law, no in- 
dividual member of that family, whilst it remains undivided, 
can predicate, of the joint and undivided property, that he, 
that particular member, has a definite share,, one-third or 
one-fourth {n). His iuterest is a fluctuating interest, capable 
of being enlarged by deaths in the family, and liable to be 
diminished by births in the family (o). It is only on a partition 
that he becomes entitled to a definite share. The most 
appropriate term to describe the interest of a coparcener in 
coparcenary property is “ undivided coparcenary interest.” 
The nature and extent of that interest is defined in sec. 235. 
For the present it is enough to say that the rights of each 
coparcener until a partition takes place consist in a common 
possession and common enjoyment of the coparcenary 
property. As observed by the Privy Council in Katama 

(n) AppovUr V. Hama Subba (1866) 11 M. I. A. I (o) Sudaraanam v. Naraaimhulu (1002) 25 Mid. 

75. 89. I 149, 154, Isa. 



COPARCENERS. 


239 


Natchiar v. The Rajah of Shivagunga (p), “ there is community of 
interest and unity of possession between all the members of the 
family, and upon the death of any one of them the others may 
well take by survivorship that in which they had during the 
deceased’s lifetime a common interests and a common posses- 
sion.” 

Illustration. 

Suppose a family to consist of A and his sons B and C ; on a partition each will 
take one-third. But if D was born while the family remained joint, each would take 
one-fourth. Suppose the family still to remain undivided ; on the death of A, the pos- 
sible shares of the three sons would be enlarged to one-third ; and if B were subsequently 
to die without issue, the shares of C and D would be enlarged to 
one-half. As C and D married, their sons B, F and O would enter 
into the family, and acquire an interest in the property, but that 
interest again would be a shifting interest, depending on the state 
of the family. If G were to die leaving only two sons E and F 
and they claimed a partition against D, E and F would each take 
one-half of one-half, and D would take the other half. But if H 
had previously been born, E, F and H would each take one-third of one-half, that is, 
one-sixth each. If they put ofE their claim for a division till B and G had both died, E, 
F and B would each take one-third of the whole (g). 

Note that on a partition between 0 and D after the death of A and B, C would take 
one-half and D would take the other half. If C is dead, bis issue E, F and H will take 
per stirpes as regards D, that is, they will take the one-half share of C, and I) will take 
the other half, but as regards each other they will take per capita, that is, each will take 
an equal one-sixth share. 

The interest of a coparcener in an undivided Mitakshara family is not individual 
property (r). But the interest of a coparcener in an undivided Dayabhaga family is 
individual property («). See sec. 279. 

217. Females cannot be coparceners . — No female can be a 
coparcener under the Mitakshara law. Even a wife, though 
she is entitled to maintenance out of her husband’s property 
and has to that extent an interest in his property, is not her 
husband’s coparcener (t). This is the law even according to 
the Mithila School (m). Nor is a mother a coparcener with her 
sons (v) nor a mother-in-law with her daughter-in-law (iv). 
There can be no coparcenary between a mother and daughter 
among devadasees {x). Nor can a widow succeeding under the 
Hindu Women’s Rights to Property Act to her husband’s share 
in a joint family be a coparcener {Xj}. 


A 

ri"T, 

nh J 


(p) (1863) 9 M.I.A. 543, 611. 

(g) Mayne’a " Hindu Law,” 10th ed., 265A. 
<r) Qharib XJllah v. Khalak Singh (1903) 25 All. 
407, 30 I.A. 165. 

(«) Sreemytty Soorjeemony Dosse v. Denobundoo 
(1865) 6 M.I.A. 626, 653. 

(0 Tunna Bibee v. Radha Kissen Das (lOO-l) 31 
CaJ. 476. 

(u) iSnmathi SaWri v. Afrs. F. A. Savi (1934) 


13 Pat. 360, 145 I.C. 1, ('33) A.P. 306. 
(b) Bira Singh v, il/si. Ma^tghin (1928) 9 Lah. 
324, 330, 106 I.C. 877, (’28) A.L. 132 ; Sital 
Frasad y. Sri Ram (1944) Luck. 450. 

(w) Tht Commissioner of Income Tax y . PuMruitoi 
(1943) Nag. 458, (*43) A.N. 160. 

(i) Oangamma v. Kuppammal (1038) Mad. 
789, (‘39) A. M. 130. 

(xi) £ee£Aa()ai v. Narasim^ia (1945) Mad, 508. 


Ss. 

216,217 



240 


HINDU LAW. 


11.— COPARCENARY PROPERTY. 

S. 218 218. Obstructed and unobstructed heritage. — {!) The 

Mitakshara divides property into two classes, namely, aprati- 
bandha daya or unobstructed heritage, and sapratibandha 
daya or obstructed heritage. Property in which a person 
acquires an interest by birth is called unobstructed heritage. 
It is called unobstructed, because the accrual of the right to it is 
not obstructed by the existence of the owner. Thus property 
inherited by a Hindu from his father, father’s father, or 
father’s father’s father, but not from his maternal grand- 
father {y), is unobstructed heritage as regards his own male 
issue, that is, his son, grandson, and great-grandson (z). His 
male issue acquire an interest in it from the moment of 
their birth. Their right to it arises from the mere fact of their 
birth in the family, and they become copyrceners with their 
paternal ancestor in such property immediately on their 
birth. Ancestral property is unobstructed heritage. 

A inherits property from his father. A son is afterwards born to him. The son 
becomes a coparcener with his father A by birth, and is entitled to an equal undivided half 
share in the property. The property in the hands of A is U7iobstructed heritage, for the 
existence of A is no obstruction or impediment or bar to the son acquiring an interest 
in the property. But if A has no male issue, but a separated brother only, the property in 
the hands of A is obstructed heritage, for the brother can acquire no interest in it until A' a 
death. The existence of A is an obstruction to the brother acquiring any interest in the 
property during A’s lifetime. This is dealt wdth in the next paragraph. 

Property, the right to which accrues not by birth but 
on the death of the last owner without leaving male issue, 
is called obstructed heritage. It is called obstructed, because 
the accrual of the right to it is obstructed by the existence of 
the owner. Thus property which devolves on parents, brothers, 
nephews, uncles, etc., upon the death of the last owner, is 
obstructed heritage. These relations do not take a vested 
interest in the property by birth. Their right to it arises for 
the first time on the death of the owner. Until then they 
have a mere spes successionis or a bare chance of succession to 
the property, contingent upon their surviving the owner (a). 

(2) Unobstructed heritage devolves by survivorship ; 
obstructed heritage, by succession. There are, however, four 
cases ill which obstructed heritage also passes by survivorship, 
being those mentioned in sec. 31 above (6). 

(y) Muhammad Hussain v. £abu KisMoanandan 
Sahai (1937) 64 1.A. 250, (1037) All. 65, 39 
■ Bom. L.U. 979, 169 I.C. 1, ('37) A.BC .233. 

( 2 ) Mst. Sirthaji v. Alagu Vpadhia (1937) 12 




(a) Mitakshara, Ch, I, s. 1, v. 3. 

(fc) Ra)a Venkayyamma v. Venkataramanayyamma 
(19021 25 Mfld. 678- 687. 2ft I A Ifift Uiri. 



COPARCENAEY PROPERTY. 


■Ml 


Note that the only persons who take an interest birth are thfe son, ^andson and 
great-grandson. The property in which they acquire an interest by birth is ancestral 
property, that is, property inherited by their father, paternal grandfather, or great- 
grandfather, from their father, paternal grandfather, or great-grandfather. A son, 
grandson, or great-grandson, does not acquire an interest by birth in the separate cr 
self-acquired property of the father, grandfather or great-grandfather. 

Note that a son, grandson, and great-grandson acquire an interest by birth not 
only in ancestral property (which is only a species of coparcenary property), but in all 
kinds of coparcenary property ; see sec. 220. 

Illustrations. 

(a) A inherits certain property from his father. A has a son B. The property 
so inherited is unobstructed as regards B. That is to say, B becomes a coparcener 
from his very birth in the property with his father A, and on A’s death the property 
will pass to him by survivorship. The result would be the same if A had inherited the 
property from his paternal grandfather or great-grandfather. 

(b) In the case put above, A has a grandson C, but no son. C’s rights are the same 
as those of B. 

(c) A inherits certain property from his brother. A has a son B. The property 
is obstructed in A’b hands. B does not take any interest in it during A’s life. After 
A ’b death, jB will take it as 's heir by succession. The existence of A is an obstruction 
to the accrual of any rights in the property to B. 

219. Unobstructed heritage not recognized by the Daya- 
bhaga. — The distinction between obstructed and unobstructed 
heritage is peculiar only to the Mitakshara School. According 
to the Dayabhaga, all heritage is obstructed, for, according 
to the doctrines of that school, no person, not even a son, 
takes an interest by birth in the property of another. The 
Dayabhaga does not recognize the principle of survivorship. It 
recognizes only the right of succession and this right accrues for 
the first time on the death of the last owner. The Privy Council, 
however, has applied the doctrine of survivorship to pro- 
perty jointly inherited by two or more widows and two or more 
daughters even in cases arising under the Dayabhaga law [s. 31]. 

220. Classification of property. — Property, according to 
the Hindu law, may be divided into two classes, namely, 
(1) joint family property, and (2) separate property. 

Joint family property may be divided, according to the 
source from which it comes, into — 

(1) ancestral property [ss. 223-225] ; and 

(2) separate property of coparceners thrown into the 
common coparcenary stock [s. 227.] 

Property jointly acquired by the members of a joint family 
ivith the aid of ancestral property is joint family property. 


Ss. 

218-220 



242 


HINDU LAW. 


Ss. Property jointly acquired by tbe members of a joint family 
220, 221 without the aid of ancestral property may or may not be joint 
family property ; whether it is so or not is a question of fact 
in each case [s. 228]. 

The term “ joint family property ” is synonymous with 
“ coparcenary property.” 

“ Separate ” property includes “ self-acquired ” property 
[ss. 222, 231]. 

221. Incidents of joint family or coparcenary property.— 
(1) Joint family or coparcenary property is that in which 
every coparcener has a joint interest and a joint possession (c). 
The following are the main incidents of joint family or 
coparcenary property : — 

(a) it devolves by survivorship, not by succession 
[s. 229] ; 

(b) it is property in which the male issue of the copar- 
ceners acquire an interest by birth. 

(2) The joint family property must be distinguished from 
the joint property of the English law. The joint property of 
the English law devolves like joint family property by sur- 
vivorship. But the male issufe of the joint tenants do not 
acquire any interest in it by birth. 

Two complete strangers may be joint tenants according 
to English law, but in no conceivable circumstance could they 
constitute a joint Hindu family, or hold property as a joint 
Hindu family. The fundamental principle of a joint Hindu 
family is the tie of sapindaship, without which it is impossible 
to form a joint Hindu family (d). 

Joint family property is to be distinguished from what is known as joint property 
in English law. The joint property of the English law, like joint family property, 
devolves by survivorship and is liable to partition, but the male issue of those who own 
joint property do not acquire an interest in it by birth as do the male issue of those who 
own joint family property. Those who own joint property, as conceived, in English 
law, are called joint tenants. Joint family property is purely a creature of Hindu law, 
and those who own it are called coparceners. The rights of coparceners are set 
forth in s. 235 below. The distinction between joint family property and joint property 
comes into prominence only in two kinds of cases, namely, the case dealt with in s. 223, 
sub-sec. (2) [property inherited from maternal grandfather], and that dealt with in 
B. 228 [joint acquisitions]. After leaving e. 228 we shall use the expression “joint 
property “ as equivalent to “ joint family property.” 

(c) Kalama Nalchiar v. The Raja of Shivagurma 1 (d) Karsandat v. Qangabai (1908) 10 Bom. L.E. 

(1863) 9 MJ.A. 643, 611. 1 184. 



COPARCENARY PROPERTY. 


243 


222. Incidents of separate or self-acquired property.— 
A Hindu, even if he be joint, may possess separate property. 
Such property belongs exclusively to him. No other member 
of the coparcenary, not even his male issue, acquires any 
interest in it by birth. He may sell it (e), or he may make 
a gift of it, or bequeath it by will, to any person he likes (/). 
It is not liable to partition {g), and, on his death intestate, it 
passes by succession to his heirs, and not by survivorship to 
the surviving coparceners {li). 

Explanation . — The expression “ male issue ” in this and 
subsequent sections means and includes sons, sons’ sons, and 
sons’ sons’ sons. 

“ According to the principles of Hindu law, there is coparcenary.ship between the 
different members of a united family, and survivorship following upon it. There is 
community of interest apd unity of possession between all the members of the family, 
and upon the death of any one of them the others may well take by survivorship that 
in which they had during the deceased’s lifetime a common interest and common posses, 
sion. But the law of partition shows that as to the separately self-acquired property of 
one member of a tmited family, the other members of that family have neither com. 
munity of interest nor unity of possession. The foundation, therefore, of a right 
to take such property by survivorship fails ” (t). Such property passes by succession 
to the heirs of the deceased, and not to the surviving coparceners. 

The normal condition of property according to the Mitakshara law is that it is “joint ’’ 
as distinguished from “ separate.” Property according to that law cannot long remain 
separate. Thus if A holds separate or self-acquired property, on his death it becomes 
joint family property in the hands of his male issue. If he has left no male issue, but 
a widow, it will pass to his widow. On the widow’s death, however, it will pass to A’s 
collateral heirs. Thus if A has left a brother, it will go to the brother. The brother 
will take it as his separate property', but if he has sons, it will on his death pass to his 
sons, and in their hands it will be joint family property as regards their male issue (j). 

It is now settled that a son does not take any interest by birth in the separate or 
self-acquired property of his father even though such property may be immoveable. The 
father may sell such property without the concurrence of the sons (it). He may make an 
unequal distribution of such property among his sons (f), and he may make a gift of it 
to one son to the entire exclusion of the other sons (m). 


223. Ancestral property. — (i) Property inherited fro^n 
paternal ancestor . — All property inherited by a male Hindu 


(e) Muddun Oopal v. Ham BuTcah (1803) 6 W.K. 
71. 

{/) Rao Balwant Singh v. Rani Kiahori (1898) 
20 All. 267, 25 I.A. 64 (gift); Nagahngan 
V. Ramachandra (1901) 24 Mad. 429 ; 
Subbayya v. Surayya (1887) 10 Mad. 251 ; 
Somamndara v. Qanga (1905) 28 Mad. 
380 . Bawa Mieser v. Raja Bishen (1808) 
10 W.R. 287, 8.C. in app. 20 W.B. 137 ; 
Sxtal V. Madho (1877) 1 All. 394 ; Baboo 
Beer Partab v. Rajender (1867) 12 M.I.A. 
1, 39 ; Nana Narain v. Euree Punth 
(1862) 9 M.I.A. 96; Purshottam v. Vaau- 


dev (1871) 8 Bom. H.C.O C. 196. 

(< 7 ) Lochun Singh v. Nemdharee Singh (1873) 20 
W.H, 170 ; Yamunabai v. Manut^i (1899) 
23 Bom. 543. 611. 

. (A) Katama Nachiar v. Rajah of Shivagunga 
(1863) 9 M.I.A. 543, 613. 

(t) (1863) 9 M.I.A. 543, 611, aupra. 

(j) Rajah Ram v. Pertam Singh (1873) 11 Beng. 
L.R. 307, 403-404. 

(A-) Muddun Gopal v. Ram Buksh (1863) 6 W.R. 
71, 

(/) Bawa Misscr v. Rajah Bishen, supra. 

(m) Sital V, Madho (1877) 1 All. 394. 


Ss. 

222,223 



244 


HINDU LAW. 


S. 223 (1) from his father, father’s father, or father’s father’s father, is 
ancestral property. The essential feature of ancestral property 
g^ccording to the Mitakshara law is that the sons, grandsons 
and great-grandsons of the person who inherits it, acquire 
an interest in it by birth. Their rights attach to it at the moment 
of their birth. Thus if A inherits property, whether moveable 
or immoveable, from his father or father’s father, or father’s 
father’s father, it is ancestral property as regards his male 
issue {n). If A has no son, son’s son, or son’s son’s son in 
existence at the time when he inherits the property, he holds the 
property as absolute owner thereof, and he can deal with it as he 
pleases. But if he has sons, sons’ sons, or sons’ sons’ sons in 
existence at the time, or if a son, son’s son or son’s son’s son is born 
to him subsequently, they become entitled to an interest in 
it by the mere fact of their birth in the family, and A cannot 
claim to hold the property as absolute owner, nor can he deal 
with the property as he likes (o). It is very important to note 
that the only property that can be aneestral is property in- 
herited by a male Hindu from any one of his three immediate 
paternal ancestors, namely, his father, father’s father, and 
father’s father’s father, and the only persons who are entitled 
to an interest in it by birth are the sons, sons’ sons, and sons’ 
sons’ sons, of the inheritor. No other relation is entitled to 
any interest in such property by birth. A person inheriting 
property from his three immediate paternal ancestors holds 
it, and must hold it, in coparcenary with his sons, sons’ sons, 
and sons’ sons’ sons, but as regards other relations he holds it, 
and is entitled to hold it, as his absolute property. The result 
is that if a person inheriting property from any one of his three 
immediate paternal ancestors has no son, son’s son, or son’s 
son’s son, the property is his absolute property, and no relations 
of his are entitled to any interest in it in his lifetime (p). 


Property inherited by a Hindu male from his father, father’s father, or father’s 
father’s father, is ancestral as regards his male issue, even though it was inherited by 
him after the death of a life-tenant (5), Thus if a Hindu settles the income of his property 
on his wife for her life, and the property after her death passes to his son as his heir, 
it is ancestral property in the hands of the son as regards the male issue of such eon. 


(n) Met. Sirlhaji v. Alagu Vfodia (1837) 12 {») 

Luck. 273, 163 I.C. U35, ('36) A.O. 331. 

( 0 ) Jiigmotandoj v. ilangdldas (1886) 10 Bom. 

528 ; Itaja Ham Narayan v. Pertum Singh 
(1873) 11 Beag. L.B. 397 ; Chuttan Lai v. («) 
Ka!iu(1911)33All. 283,8I.C.719[aUeno. 
tlon before birth.) 


Ajoodhia v. jiasee (1872) 4 N. VV. p, 31 ; 
Janki v. Sand Ram (1889) 11 All. 194-197, 
198 [P.B.]. See Bejai Bahadur v. Bhupin- 
dar (1896) 17 All. 450, 22 I.A. 139. 

Hanabhai v. Achratbai (1888) 12 Bom. 122, 
133 ; Beni Perehad v. Puran (1896) 23 Cal. 
202, 273. 



COPARCENAEY PROPERTY. 


245 


llluatralions. 

fa) A inherits certain property from his father. A has a son B. The property 
so inherited is ancestral in A’s hands, and it must be held by him in coparcenary with 
B. B can enforce partition of it against A, in which event he will be entitled to one-half. 
If B continues joint with his father, the whole property will pass to him by survivorship 
on the father’s death. 

(b) A inherits two immoveable properties from his father. A has no son, son’s 
son, or son’s son’s son in existence at the time. A can alienate the properties at his 
pleasure. Suppose A alienates one of the properties, and a son, B, is subsequently born 
to him. B cannot claim any interest in the property alienated by A before his birth, 
but as regards the other property which still remains with A, B acquires an interest in 
it by birth, and A must thenceforth hold it in coparcenary with B. 

(c) A inherits certain property from his father. A has no son, grandson or great- 
grandson, but he has a brother (or a paternal uncle). The brother (or uncle) does not 
take any interest in the property by birth. As regards the brother or uncle the property 
inherited by A is his separate property. A may therefore sell or mortgage (r) it, or make 
a gift of it to any one he likes, or he may dispose of it by will. 

Where a number of sons inherit their father’s self-acquired property, they hold 
it as joint family property (a). 

(2) Property inherited from maternal grandfather . — In 
VenJcayyamma v. Venkataramanayyamma (<), t'wo brothers 
ivho were living as members of a joint family inherited certain 
property from their maternal grandfather. On the death 
of one of them leaving a widow, the question arose whether 
his share in the property so inherited passed to his widow 
by succession or to his brother by survivorship. Their Lord- 
ships of the Privy Council held that the property inherited 
by the two brothers was joint property in their hands, and 
that the undivided interest of the deceased passed on his death 
by survivorship to bis brother, and not by succession to his 
widow. T he effec jLjo£this-deeision-is that the sons of a daughter 
inheriting to their maternal grandfather take as joint-tenants 
with benefit of survivorship and not as tenants-in-common. 
The Privy Council have now held that such property is not 
ancestral property [u). The Privy Council explained their 
former decision thus ; “ The brothers took the estate of 

their maternal grandfather at the same time and by the same 
title and there was apparently no reason why they should 
not hold that estate in the same manner as they held other 


( r) Baijnath v. Maharaj Bahadur (1933) 8 Luck. 

28, 137 I.C. 814, (’32) A.O. 1G8. 

(») Shyam Befiari Singh v. Rameshicar Prasad 
Sahu (1941) 20 Pat. 904, 198 I.C. 208, 
(’42) A.P. 213. 

(0 (1902) 25 Mad. 678, 29 I.A. 156. 

(u) Muhammad Uussain Khan v. Babu Khhwa- 
nandan Sahai (1937) 64 I.A. 250, (1937) 


All. 65, 39 Bom. L.R. 979, 169 I.C. 1, 
(’37) A.PC. 233. The decision in 
Vythinalha Ayyar v. Yeggia Narayana 
(1903) 27 Mad. 382 must be regarded as 
over-ruled, and those in Jumna Prasad v. 
Ram Pariah (1907) 29 All. 667, and 
Bisrsanath v. Qajadhar (1918) S Pat. L.J. 
168, 43 I.C. 370, (’17) A.P. 146 must be 
regarded as approved. 


S. 223 (2)1 



246 


HINDU LAW. 


^.223 
( 3 ). ( 4 ) 


joint' property. The rule of survivorship which admittedly 
governed their other property was held to apply also to the 
estate which had come to them from their maternal ^and- 
father ” (v). Their Lordships pointed out further that “ it was 
not contended in that case that the estate was ancestral in the 
restricted sense in which the term is used in Hindu Law.” 
It is submitted that the decision in the earlier case must be 
confined to its own facts, and it was not necessary there to 
decide, nor was any opinion expressed on the precise question 
whether the property which a Hindu inherits from his maternal 
grandfather is ancestral property in the technical sense. Should 
this question arise hereafter it will have to be answered in 
accordance with the decision in the later case (w) . A maternal 
uncle, however, is not an ancestor, and it has accordingly been 
held lay the Madras High Coint that property inherited from a 
maternal uncle is not ancestral property (x). ’ 

No such question can arise if the daughter takes an absolute 
estate as in Bombay, for her sons would then succeed to that 
property not as the heirs of their maternal grandfather, but 
as the stridhana heirs of their mother (y). See sec. 147 (2) 
and sec. 151 (II). 

(<3) Property inherited from collaterals — property inherited 
from /emaZes.— Excluding the doubtful case of property 
inherited from a maternal grandfather, it may be said that the 
only property that can be called ancestral property is 
property inherited by a person from his father, father’s father, 
or father’s father’s father. Property inherited by a person 
from any other relation is his separate property, and his male 
issue do not take any interest in it by birth. Thus property j 
inherited by a person from collaterals, such as a brother, uncle, i 
etc., or property inherited by him from a female, e.g., his 1' 
mother, is his separate property (z). 

(4) Share allotted on partition . — The share which a 
coparcener obtains on partition of ancestral property is 
ancestral property as regards his male issue. They take an 
interest in it by birth (a), whether they are in existence at the 


(t>) The father of the two brothers was living 
when they inherited their matproal grand- 
father’s estate and the * other property* 
was being enjoyed by three persons. 

(w) Tandil Mohanlal v. Pandit Ram^xiyal (1041) 
16 Luck 708, 194 I.C. 62, (*41) A.O. 331. 
{x) Earuppai v. Sanlcaranarayanan (1904) 27 
Mad. 300. 

(y) Manibhai v. Shankerlal (1930) 54 Bom. 323, 


125 I.C. 433, (’30) A.B. 290. 

( 2 ) Bab oo. Nund Coomar v. Razeeooddeen (1873) 
10 Beng. L.H. 183 ; Raj Kishore v. 
Madan Oopal (1932) 13 Lah. 491, 143 I.C. 
249, (’32) A.L. 636. 

(a) Lai Bahadur v. Kanhaiya Lai (1907) 29 All. 
244, 34 I.A. 65 ; Chatturbhooj v. Dharamsi 
(1885) 9 Bom. 438 , Lakshmibai v. Oanvat 
(1868) 6 Bom. H.C.O.C.J. 128. 



COPARCENARY PROPERTY. 


247 . 


time of partition or are born subsequently (b). Such share, 
however, is ancestral property only as regards his male issue. 
As regards other relations, it is separate property, and if the 
coparcener dies without leaving male issue, it passes to his 
heirs by succession (c). 

Illustrations. 

A and B, two Hindu brothers, are members of a joint family. A has a son C. B 
has no son, but a wife. A and B divide the joint family property. A’s share of the 
property is his separate property as regards B, but it is ancestral as regards his son C. 
The share of B also is his separate property as regards A, and on R's death without leaving 
male issue, it will pass to his wife, as his heir. The effect of the partition is to cut-off 
the claims of the dividing members, but the father and his male issue still remain joint. 

When, the share allotted to a coparcener on partition consists of property which is 
subject to a mortgage, the fact that he subsequently clears it from the mortgage by his 
own self-acquisitions, does not alter the character of the property. The unencumbered 
property still remains ancestral, and his male issue acquire an interest in it by birth (d). 
It is otherwise where the mortgage has been foreclosed, and the mortgaged property is 
subsequently purchased* by the coparcener with his own self-acquisitions (e). 

(5) Property obtained by gift or will from paternal 
ancestor . — Where a Hindu, instead of allowing his self- 
acquired or separate property to go by descent, makes a gift 
of it to his son, or bequeaths it to him by will, the question 
arises whether such property is the separate property of the 
son, or whether it is ancestral in the hands of the son as regards 
his (son’s) male issue. In Calcutta (/), it has been held that 
such property would be ancestral. In Madras {g), upon the 
whole, the view seems to have been taken that the father can 
determine whether the property which he has so given shall 
be ancestral or self-acquired on the principle of “ cuius est 
dare eius est disponere,” but that unless he expresses his wish 
that it should be deemed self-acquired, it is ancestral. In 
Bombay (h), on the other hand, the principle of intention seems 
to have been accepted if it makes the property ancestral, but 
if there be no expression of intention, it is deemed self-acquired. 
In Allahabad (i), the decision is that such property is self- 
acquired. In Oudh (j), it has been held that in the absence of 
language clearly indicating the testator’s intention that the 


(b) Adunnojii v. Chowdhry (1878) 3 Cal. 1, 8, 

where tlie son was born after partition. 

(c) See Btgai Bahadur v. Bhupindar (1895) 17 

Ail. 456, 22 I.A. 139. 

(<0 Visalaichi v. Annabamy (1871) 5 Mad. H.C, 
150. 

(e) Balwaid Singh v. liani Kishori (1898) 20 
All 267, 25 I.A. 54. 

if) Mudden Gopal v. Ram Buksh (1863) 0 W.K. 
71 [gift] ; Hazari Mall v. Abanmath (1912) 
17 C.W.N. 280, 18 l.C. 025. 

(i;) Tara Chand v. Reeb Ram (1866) 3 Mad. H. 
C. 50 [will]; iiagalingam v. Ramchatidra 


(1901) 24 Mad. 429 [will] ; Vdayudhan v. 
Comnmsioncr of Income Tax, Madras 
(l94o) Mad. 599. 

(A) Jugmohandas v. Mangaldas (1886) 10 Bom. 
528, 570 [will] ; Nanabhai v. Achratbai 
(1888) 12 Bom. 122. 

(0 Paraoiaw v. Janki, Bai (1907) 29 All. 354 
[wUi], 

(j) Ramebhar v. Rukmin (1900) 14 Oudh C.tses 
214, 12 l.C. 770 . Musamma/ Bn'j Runwar 
V. Rai Bahadur Pamht Sankata Prasad 
(1929) 4 Luck. 400, 123 l.C. 849, (’30) 
A.O. 39. 


1223 ( 5 ) 



248 


HINDU LAW. 


223(5) property should be held by the sons subject to the incident 
of survivorship, it should be presumed that such property is 
self-acquired. The question was left open by the Judicial 
Committee in the under-mentioned case {k). In one case in 
Patna where the donor stated that though the son may be 
malik after his death he wished to make the son malik in his 
presence, it was held by a Full Bench that the donee gets the 
property as ancestral property (1). 

Illustrations. 

(a) A and his five sons constitute a joint Mitakshara family. A executes a deed 
of gift of his self-acquired immoveable property by which he gives portions to each of 
his five sons. According to the Calcutta High Court, the property so acquired by each 
son is ancestral in his hands, and his male issue acquire an interest in it by birth. There 
is no question of intention according to that Court ; Muddun Gopal v. Ram Buhsh (1863) 
6 W.R. 71. 

(b) A, by his will, bequeatlied the residue of his property to his three sons in the 
following terms : “ My three sons aforesaid who are now alive, together with all the 
sons who may be born to me hereafter, shall divide all my properties into as many 
equal shares [as there be eons], and each son should take one share.” The will contained 
a direction that the family house should not be divided between the sons until after the 
death of A’s wives. Held by the High Court of Madras, that there were no express words 
in the will indicating an intention that the share bequeathed to each son should be held 
by him as his self-acquired property ; therefore, the share bequeathed to each son was 
ancestral property in his hands, and the male issue of each son acquired an interest in 
it by birth : Nagalingam v. Samchandra (1901) 24 Mad. 429. 

(c) A, by his will, bequeathed the residue of his property to hie son in the 

following terms : “ After my death my son Mangaldas is the master [owner] of my estate. 

He is not to dispose of the estate, nor is he to give it in mortgage, but from the 
produce of rent thereof all the charges of the estate and of the family are to be disbursed, 
and the balance placed at interest at some proper place, but it is to belong to my son 
Mangaldas. Should he be under the necessity of giving the estate away by way of 
mortgage or selling them, he may do so on consulting the herein mentioned executors.” 
Held by the High Court of Bombay, that there were no words in the will indicating an 
intention that the property should be held by him as ancestral property ; therefore, the 
son took the property as his self-acquired property, and his male issue did not acquire 
any interest in it by birth : Jugmohandas v. Mangaldas (1886) 10 Bom. 628. 

The summary of the law given in sub-sec. (5) is taken almost verbatim from the 
judgment of the Judicial Committee in Lai Ram Singh v. Deputy Commissioner of 
Parlabgarh (m). Their Lordships did not decide between the conflicting decisions 
of the High Courts, but said that when the time came, they would prefer to 
go back to the original text of the Mitakshara and put their own construction upon 
that text. 

The text of the Mitakshara referred to above is as follows : — “ Whatever else is 
acquired by the coparcener himself without detriment to his father’s estate, or as a present 
from a friend, or a gift at nuptials, does not appertain to the co-heirs” ; Mitakshara 
Chapter I, sec. 4, para 1. 


{k) Lai Ram Singh v. Deputy Commissioner of j 
Partabgarh (1923) 50 I.A. 265, 45 All. 596, i 
76 I.C. 922, ('23) A.PC. 160. 

(1) Bhagicat Shukul v. M. T. Kapomi (1944) 23 1 


Pat. 599. 

(m) (1923) 50 I.A. 265, 275, 45 All. 596, 604 , 76 
I.C. 922, (’23) A.PC. 160. 



UOPARCBSTARY PROPERTY. 


249 


The words “ does not appertain to the co-heirs ” mean “ does not belong to the 
coparceners.” In Muddan Oopal r. Bam Buksh («), the Calcutta High Court held that 
the property given by a father to his sons cannot be said to have been acquired by them 
“ without detriment ” to their father’s estate within the meaning of the above text, 
because it is not only given out of that estate, but in substitution for the undivided 
share of that estate ; that the son is only getting by his father’s gift that which, but 
for the gift, he would have received by descent ; had he received it by descent, it would 
have been ancestral property in his hands ; the character of the property is not changed 
because he receives it by way of gift. 

A gift of property made by a father to his son on the occasion of the son's marriage 
is not ancestral property in the hands of the son. It comes within the words “ gift at 
nuptials ” in the above text, and it is his separate property (o). 

(6) Accretions . — Accumulations of income of ancestral 
property (p), property purchased or acquired out of the income 
or with assistance of ancestral property (g), the proceeds of sale 
of ancestral property, and property purchased out of such 
proceeds (r), are hncestral property. It is now well established 
that sons, grandsons and great-grandsons acquire a vested 
interest not only in the income and accretions of ancestral 
property which accrued after their birth, but also in the 
income and accretions which accrued prior to their birth (s), 

224. Character of father’s and son’s interest in ancestral 
property. — Under the Mitakshara law each son upon his 
birth takes an interest equal to that of his father in ancestral 
property, whether it be moveable or immoveable. It is very 
important to note that the right which the son takes at his 
birth in the ancestral property is wholly independent of his 
father. He does not claim through the father, and, therefore, 
a transfer by a father of his own interest in the ancestral pro- 
perty, where such transfer is allowed by law [s. 257], cannot 
affect the interest of the son in the property {t). But the father 
has a special power of disposal of ancestral property for certain 
purposes specified in sections 225, 226 and 295. 


AuiTioriiy of father. — There is under the Mitakshara law no distinction between 
the rights of a father and his sons as regards ancestral property, except that the father 
can dispose of (1) ancestral property, whether moveable or immoveable, for the payment 
of his debts, (2) ancestral moveable property for the purposes specified in s. 225, and (3) 
ancestral immoveable property for the purposes specified in s, 226. Further, the father 
so long as he is capable is the head and manager of the family. He is entitled to the 


(n) (1863) 0 W.ll. 71, 73. 

(o) (1863) 6 AV.R. 71, 7.3, See also 

Chandra v. JSolnn Chandra (1907) 12 C. W. 
N. 103 

ip) Ramanna v. Venkata (1888) 11 flfad. 246. 
(?) Lai Bahadur v, Kanhaia Lai (1907) 29 All. 
244, 34 I. A. 05 ; JJmnthnath v. Gouree- 
nath (1870) 13 M.I.A. 542. 


(r) Krishnasami v. Rajagopala (1895) 13 Mnd. 
73, 83. 

(i) Isree Fershad v. Nasih Kooer (18841 10 Cal. 
1017, 1021 ; Juqmohandas v. Mangaldas 
(1886) 10 Bom. 528, 581 ; Raynaima v. 
r«niaia(1888) 11 Mad. 246. 

(0 Anandrao v. Vasantrao (1907) 9 Bom. L. R. 
595, at p. 597 [B.C.], affirming (1904) 6 
Bom. L.R. 925. 


Ss. 

223,224 



250 


HINDU LAW. 


Ss. 

224-226 


possession of the joint property. He directs the concerns of the family within itself 
and represents it to the world. But as regards substantial ‘pro'prieiorshi'py he has no greater 
interest in the joint property than any of his sons. If the property is ancestral, each 
son by birth acquires an interest equal to that of the father. And in the same manner 
his grandsons and great-grandsons take an interest on their respective births in the rights 
of their fathers who represent them, and therefore in unascertained shares of the entire 
property. 

225. Gift by father within reasonable limits of ancestral 
moveables. — Although sons acquire by birth rights equal to 
those of a father in ancestral property both moveable and 
immoveable, the father has the power of making ivithin reason- 
able limits gifts of ancestral moveable property without the 
consent of his sons for the purpose of performing “ indispensable 
acts of duty, and for purposes prescribed by texts of law, as 
gifts through affection, support of the family, relief from distress 
and so forth” (u). i 

A “ gift of affection ” may be made to a wife, to a daugh- 
ter, and even to a son. But the gift must be of property with- 
in reasonable limits. A gift of the whole, or almost the whole, 
of the ancestral moveable property to one son to the exclusion 
of the other sons, cannot be upheld as a “ gift through affec- 
tion” prescribed by the text of law {v). 

In Madras it has been held that a disposition may be made of a small portion of 
the property in favour of a daughter or other female member even by will, provided the 
father obtains the consent of his sons to such disposition (uj). But the correctness of this 
decision is open to question, for no member of a joint family, nob even a father, can dis- 
pose of even his own coparcenary interest by will though the other coparceners may 
consent to the disposition [s. 256], The soundness oi the decision was questioned in the 
later Madras case of Subbarami v. Ramamvia (x). In that case a father who was joint 
with his minor son bequeathed by his will certain family properties to his wife for her 
maintenance. There was no question of consent, the son being a minor. It was held that 
the will was invalid and inoperative as against the son, although it would have been a 
proper provision if made by the father by a gift during his lifetime (a:). 


226. Gift by father or other managing member of ancestral 
immoveable property within reasonable limits. — A Hindu father 
or other managing member has power to make a gift within 


(li) Mitakshara, Chap. I, sec 1, para. 27. 

(tJ) JjOksJiman v. Tiamcliandra (1881) 6 Bom. 
48, 7 r.A. 181, affirming (1876) 1 Bom. 
561 [gift to son set aside] ; Nand Ram v. 
Mangal (1909) 31 All. 359, 1 I.C. 797 
[gift to son set a‘-idc] ; Rarhoo v. Mankorc- 
bai (1907) 31 Bom. 373, 34 I A. 107, affirm- 
ing (1905) 29 Bom. 51 [gift to daughter 
of Rs. 20,000 made out of income, vphdd, 
the total value of the property being from 
Rs. 10 to 15 lacs] : liamahnga v. ISarayana 
(1922) 49 I.A. 168, 45 Mad. 489, 68 I.C. 
451, (’22) A.PC. 201] gift to only daughter 
who was looking after the father] ; Kamak- 


8hi V. Chakrapany (1907) 30 Mad. 453 
[gift to daughter set aside as it was of a 
considerable portion of the property ] ; 
Ilanmantapa'v. xHvabai (1900) 24 Bom. 
547, .'*52,555 [gift to daughter-in-law up- 
held] . Madhukudan v. liamji (1920) 5 
Pat. T,. J. 518, 57 X C. 341, (’20) A.P. 114 
[provision before marriage for maintenance 
of son-in-law and, therefore, also of the 
daughter, upheld]. 

(u>) Appan Patra v. Srinivasa (1917) 40 Mad. 

1122, 40 I.C. 118, (’18) A.M. 531. 

(z) Subbarami v. Rarnamma (1920) 43 Mad. 

824, 50 I.C. 681, (’20) A.M. 637. 



COPARCENABY PROPERTY. 


251 


reasonable limits of ancestral immoveable property for “ pious 
\\ purposes.” ]^t_tke_jalienation must be by an act inter vivos, 
l and no t by will {y). A- m^emlaer lif a“ jbml ‘TanS^ 
dispose of by will any portion of tbe property even for charitable 
purposes and even if the portion bears a small proportion 
to the entire estate ( 2 ). 

“ Even a single individual may conclude a donation, mortgage, or sale of immoveable 
property, during a season of distress, for the sake of the family, and especially for pious 
purposes Mitakshara, ch. I, a. 1, v. 28-29. But he cannot dispose of it by will (o). 

It has been held by the High Court of Madras that a father has no power to make 
a gift of ancestral immoveable property to his wife to the prejudice of his minor sons {b). 
But it has been held by the same Court that he can make a gift of a small portion of 
ancestral immoveable property to his daughter at or after her marriage, such gift being 
customary in that Presidency (c). In Bombay, it has been held that a father cannot 
make a gift of even a sm^H portion of the joint family immoveable property to hia daugh- 
ter, though it be on the ground that she was looking after him in his old age (d). In 
an Allahabad case (c), the Court refused to uphold a gift by a father to his daughter’s 
father-in-law of a share in a village, though it was transferred to him as the marriage 
portion of the daughter. A gift to a stranger is equally invalid and the other members 
of the family, while in possession, need not sue to set it aside (/). 


227. Property thrown into common stock. — (i) Property 
which was originally the separate or self-acquired property 
of a member of a joint family may become joint family 
property, if it has been voluntarily thrown by him into the 
common stock with the intention of abandoning all separate 
claims upon it. A clear intention to waive his separate rights 
must be established {g), and it will not be inferred from the mere 
fact of his allowing the other members of tbe family to use it 
conjointly with himself nor from the fact that the income 
of the separate property was used to support a son {h) nor 
from the mere failure of a member to keep separate accounts 


(y) Gangi Baddi v. Tammi Baddi (1927) 54 
I.A. 136, 140, 50 Mad. 421, 425, 109 I.C 
79, {'27) A. PC. 80; Gopal Cfiand v, Babu 
Kunwar 5 S.D.A., p. 24 ; Raghunath 
V. Gobind (1886) 8 All. 76 [provision 
for family idol] ; Bamalinga v. Sivachi- 
dambara (1919) 42 Mad. 440, 49 I.C. 742, 
('19) A.M. 809 [gift to an idol of a temple 
on the occasion of the donor’s father's 
funeral], doubting Bathnam v. Sivasuh- 
ramania (1893) 16 Mad. 353 [gift of 
0 silver vehicle to a temple] ; Sri Tfiakurji 
V. Nunda (1921) 43 All. 560, 03 T.C. 546, 
(’21) A. A. 333 [gift to an idol) ; Kalu v. 
Barsu (1895) 19 Bom. .803 [gift to plaintiff 
as worshipper of adeity-gift not upheld] ; 
Amar Chandra v. Saradamayee (1930) 57 
Cal. 39, 123 I.C. 680, (’29) A.C. 787. See 
also West and Buhler, 4th edi , p. 204, note 
(1), and p. 686, note (g), and Haridas v. 
Bevkuvarbai (1926) 6'» Bom. 443, 449, 97 
I.C. 820. (’26) A.B. 408 (gift to daughter 


upheld on the ground that the son had 
consented to it). 

(z) Jankharlal v. Shri Thakur Radha Oopalji 
Mahara) (1945) All 177. 

(a) Lalta Prasad v Sri Mdhadeoji (1020) 42 
All. 401, 58 I.C. 667, (’20) A.A. 116. 

(/.) Bayakkal v, Subbanfia (1892) 16 Mad. 84. 

(c) SvTtdararamayya v. SiUamma (1912) 35 Mad. 

628. 10 I.C. 56 [gift of 8 out of 200 acres 
upheld]. 

(d) Jinnappa Mahadevappa v. Chimmava 

Krishnappa (1935) 59 Bom. 459, (’35) 
A.B. 324. 

(e) Qanqa v. P^rtbi Pui (1880) 2 All. 635. 

</) Riasat Ali v. Iqbal Bai (1935) 16 Lah. 659, 
157 I.C, 76, (’35) A.L. 827. 

(f^) Baj Kixhore v. Madan Gopal (1932) 13 Lah 
491, 143 I C. 249 (’32) A.L. 636. 

(A) Gopal v Keshoba 0936) Mad. 65, 165 I.C. 
350, (’36) A.M. 185. 


Ss. 

226,227 



252 


HINDtl LAW. 


S. 227 of his earnings (i). Separate property thrown into the common 
stock is subject to all the incidents of joint family property (j). 

{2) Similarly where members of a joint family, who 
have control over the joint estate, blend with that estate 
property in which they have separate interests, the effect is that 
all the property is so blended becomes joint family property (k). 

(3) The above rules apply also to brothers living together 
and forming a joint family governed by the Dayabhaga (1). 

lllustralions. 

(a) Three Hindu brothers. A, B and C, lived together as members of a joint family 
in their ancestral house at Nagothna, the house being the onlj' property left by the father. 
Subsequently A and B went to Baroda and got employment there as clerks. C 
remained at home to look after the family affairs. Both A and B remitted money from 
time to time to C for the support of the family living at Nagothr.a. C applied the income 
towards the support of the family, and with the savings from such remittances 
he purchased certain immoveable property in his own name. A and B sued C to 
recover possession of the property from G, alleging that it was their self-acquired pro- 
perty. Held, that the property was the self -acquired property of A and B, and they 
were entitled to it to the exclusion of C, unless it appeared that the property had been 
treated by A and B as joint family property. As there was no finding on the point, the 
High Court referred the following issue to the lower Court, namely, whether as a fact 
A and B had voluntarily thi-own the property into the joint stock with the intention of 
abandoning all separate claims upon it : Krishnaji v. Moro Mahadev (1890) 15 Bom. 32. 

(b) A joint Hindu family, consisting of a father and his three sons, owns certain 
villages which are the joint property of the family. The father as the head of the family 
opens an account with a banker with whom he deposits from time to time the income 
arising from the villages. The father also earns a large sum of money every year, and 
these earnings also are deposited by him with the hanker in the same account. There is 
nothing to show that he discriminated between the income of the joint properties and his 
personal income. On the other hand the evidence shows t hat he blende d them.both in 
o ne gen eralj.ce«untr~ Upon these facts it was held by the Privy Council that the self- 
acquisitions of the father must be treated as joint family property, and that he had no 
power, therefore, to dispose of them by his will : Lai Bahadur v. Kanhaiya Lai (1906) 
29 All. 244, 34 I. A. 65. 

Separate property and limitation. — tVhere a coparcener discontinues his possession 
of property belonging to him separately in favour of the joint estate, his right to claim 
the property as separate may be barred by limitation (m). 


(i) Vythianatha v. Varadaraja (1938) Mad. 696, 

(•38) A.M. 841. 

(j) Lai Bahadur v. Kahnaia Lai (1907) 29 Ali. 

244, 34 I.A. 6y ; Suraj Ifarain v 1i€Jan 
Lai (1917) 44 I.A. 201, 40 All. 159, 40 I.C. 
DBS, ('17) A.PC. 12; liadhdkant Lai v. 
yazma Begum (191P) Ah Cal. 733, 45 I C 
806, ('17) A.PC. 128 [property inherited 
from brother thrown into common atockl. 
Lala Muddun Gopal v. Khikhinda Koer 
(1891) 18 Cal. 341, 18 I.A. 9 ; Krishnaji v. 
Moto Mahadev (1891) 15 Bom. 32, 39-40 ; 
Tribhovandaa v. Yorke Smith 0897) 21 
Bom. 349; Gopalagami v. Chinnsami 
(1884) 7 lilad. 458 (property inherited 


from maternal grandfather thrown Into 
common storkl ; Tottempudi v. Tottempudi 
(1904) 27 Mad. 228 ; Rampershad v. Sheo 
Churn (1860) 10 M.I.A. 490, 505. See also 
Hurpershad v.Sheo Dj/al (1870) 3 I.A. 259, 
20 ^V.R. 55 : Shankcr Baksh v. Hardeo 
Baksh (1889) 10 Cal. 397, 16 I.A. 71. 

{k) J?ajam Kant Pal v. Jaga Mohan Pal (1923) 
50 LA. 173, 50 Cal. 439, 73 I.C. 252, (’23) 
A.PC. .57. 

(l) (1923) 50 LA. 173, 50 Cal. 439, 73 I.C. 252. 

(’23) A.PC. 57, supra. 

(m) Vamdexa v. Maguni (1901) 24 Mad. 387,28 

I.A, 81 ; Babaji v. Jivap (1930) 32 Bom. 
L.R. 314, 127 LC. 204. (’301 A B. 333. 



COPAEGENAEY PROPEETY. 


263 


House built on ancestral land with separate Junds . — If a member of a joint family 
builds a house on ancestral land with his own moneys, the other members have a claim 
on him only for compensation for their share of the land (n). See sec. 235 (4). 

228. Property jointly acquired. — (2) Where property has 
been acquired in business by persons constituting a joint Hindu 
family by their joint labour, the question arises whether 
the property so acquired is joint family property, or whether it 
is merely the joint property of the joint acquirers, or whether 
it is ordinary partnership property. If it is joint family pro- 
perty, the male issue of the acquirers take an interest in it by 
birth [s. 221, sub-s. (2)]. If it is the joint property of the 
joint acquirers, it will pass by survivorship, but the male 
issue of the acquirers do not take any interest in it by birth 
[s. 221, sub'S. (2)]. If it is partnership property, it is governed 
by the provisions Of the Indian Partnership Act, 1932, so that 
the share of each of the joint acquirers will pass on his death 
to his heirs, and not by survivorship. 

(2) If the property so acquired is acquired with the aid of 
joint family property, it hecomes joint family property (o). 

{3) If the property so acquired is acquired without the 
aid of joint family property, the presumption is that it is the 
joint property of the joint acquirers {p), but this presumption 
may be rebutted by proof that the persons constituting the 
joint family acquired the property not as members of a joint 
family, but as members of an ordinary trade partnership resting 
on contract, in which case the property will be deemed to 
be partnership property {q). 

In the absence of any proof of partnership, property jointly 
acquired by the members of a joint family without the aid of 
joint family property is, as stated above, to be presumed to 
be joint. But is it also to be presumed to be joint family 
property ? It was at one time held by the High Court of 
Bombay that property jointly acquired without the aid of 
joint family property was not joint family property and that 
the male issue of the joint acquirers did not acquire an interest 


(n) Vithoba v. Hariba (1869) 6 Bom. H. C. 

(A.C.) 54 ; Periakanippan v. Arunache- 
lam (1927) 50 Mad. 582, 102 I.C. 290, 
(’27) A.M. 676 [house built by sole sur- 
viving coparcener — subsequent adoption 
by him — adopted son held entitled to 
onc-half share in the landj. 

(o) Umrithnath v. Ooureenath (1870) 13 M.I.A. 

542 , Lai Bahadur v. Eayihaiya Lai (1907) 


29 All. 244, 34 I.A. 65. 

<p) Ckandrabhaga v. *4.n(Miarao (1930) Nag. 293. 
{q) Rampershad v. Sheo Chum (1806) 10 M.I.A. 
490, 506; v. HrMnarArlam (UH>4) 

27 Mad. 32 ; Chaturbhooj v. l> tmviiJti 
(1385) 0 Bom. 438, 445 ; vS'iirnalhAut v. 
Somfshnvr (18811 5 Bom. 38 ; Y. 

./tllUUB (18991 23 BxUU. 144. 


Si. 

227,228 



254 


HTNDU LAW. 


S. 228 in it by birth, unless it was thrown into the common stock (r). 

In later cases, however, it has been held that such property 
must be presumed to be joint family property (s), and this 
has been followed in Lahore (t), Nagpur lu) and Oudh (v). 
In Madras it has been held that property so acquired must 
be presumed to be joint family property (w) unless the acquirers 
intended to hold the property as co-owners between themselves 
in which case it would be their joint property (x). 

Illustrations. 

(a) Property is acc^uired by a joint Hindu family consisting of five brothers without 
the aid of joint family property. The presumption is that the property is joint, and not 
partnership property, so that if any one of the brothers dies leaving a widow, his share 
of the joint property will pass not to his widow, but to the surviving brothers. But 
if it be proved that the brothers carried on business not as members of a joint family 
but as partners under a partnership agreement, the share of the deceased will pass 
as his separate property to the widow: Rampershad v. Shto Churn (1866) lOM.I.A. 
490, 505-506. 

(h) A joint family consists of two brothers, A and B. A and B commence business 
in the year 1900 without the assistance of any ancestral i)roperty, and acquire a large 
fortune. A son C is born to A in the year 1905. In 1910 A and B wind up the business, 
and divide the acquisition between them. A then makes a gift of his share to a stranger. 
Is the gift valid ? It would be valid if C did not acquire an interest in the joint 
acquisition by birth. It would be invalid, if C acquired an interest in the property 
by birth. The question, therefore, is, whether C acquired an interest in the joint ac- 
quisitions by birth. According to the view taken by the Bombay High Court in 'a case 
decided in 1884, the property acquired by A and B is joint as between them, so that 
on the death of either of them, the survivor would be entitled to the whole, but as regards 
others including (7, it is their self-acquired property, so that C does not acquire any 
interest in it by birth, and A can dispose of his share at his pleasure. According to 
later decisions, such property is to be presumed to be joint family property. According 
to the Madras High Court, property jointly acquired by the members of a joint family, 
though without the assistance of joint family property', is to be presumed to be joint 
family property, so that 0 must be regarded as having acquired an interest iu the property 
by birth, unless it be shown that A and B held the property as “co-owners,” that is, 
held it as their self-acquired property as distinct from joint family property. The 
Bombay decisions are now in line with the Madras decision. 

Compare sec. 45 of the Transfer of Property Act, 1882, according to which where 
immoveable property is purchased by two or more persons out of a commom fund, the 
purchasers are, in the absence of any contract to the contrary, entitled to hold the 
property in shares proportioned to their interests in the common fund. A similar rule 
applies where a joint purchase is made by several persons with their separate funds. 
Note that sec. 45 occurs in Chapter II of the Act, which by sec. 2 does not affect any 
rule of Hindu law, 

(r) Chatiirbhooj v. Dharamsi (1885) 9 Bom. 

43B, 445. 

(«) Laldas v. MoUbai (1908) 10 Bom. L. R. 

175 ; Jlaridas v. Devkuvarbai (1926) 50 
Bom. 443, 97 I.C. 820, (’26) A.B. 408 
[property jointly acquired by father and 
sons]. See also Karsondas v. Qangabai 
(1908) 32 Bom. 479. 

(0 Sanwal Das v. Kure Mai (1928) 9 Lah. 470, 


tvni i.v; 779. ('28) A.L. 224. 

(m) Sttalprasad v. Ram Prasad (1944) Na?. 17. 

(v) Lachmi Narain v. iilusoddi Lai (1942) 
17 Luck. 327, 197 I C. 247, (’42) A.O. 155. 
(lo) No such presumption arises where the 
business is carried on by some only of the 
members of the joint family , Sudarsanam 
V. Narnsimhulu (1992) 25 Mad. 149. 

(x\ (19021 2.5 Afnd. 140 Rimra. 



COPARCENARY PROPERTY. 


266 


229. Survivorship— Devolution of deceased coparcener’s S.229 
interest.— (i) On the death of a coparcener, his interest in 
the coparcenary property does not pass by succession to his 
heirs. It passes by survivorship to the other coparceners, , 
subject to the rule that where the deceased coparcener leaves I 
male issue, they represent his rights to a share on partition (y), I 
and are his sole legal representatives for purposes of execution 
of money decrees passed against him (z). The rule of survivor- 
ship here stated is, however now subject to the right of the 
widow of a deceased coparcener to take her husband’s share. 

See sec. 35. 

(2) The right of a coparcener to take by survivorship is 
defeated in the following cases : — ■ 

(i) where the deceased coparcener has sold or mort- 
gaged his interest, in provinces where such sale or 
mortgage is allowed by law [s. 259] ; 

(ii) where the interest of the deceased coparcener has 
been attached in his lifetime in execution of a decree 
against him. A mere decree obtained by a creditor, 
not followed up by an attachment in the lifetime 
of the debtor, will not defeat the right of survivor- 
ship, unless the judgment-debtor stood in the relation 
of father, paternal grandfather or great-grandfather 
to the surviving coparceners [ss. 289, 292 (4)] ; 

(iii) where the interest of the deceased coparcener has 
vested in the Official Assignee or Receiver on his 
insolvency (a) [s. 265]. On the annulment of in- 
solvency the interest which vested in the Official 
Receiver revests under sec. 37 of the Provincial 
Insolvency Act in the insolvent and if on that date 
he is not alive, it goes to his heirs under the law (6). 

Sub-aec. {!). — What passes to the male issue is not a share, but the right to have 

a share on partition. Suppose A and B are two brothers, and 

I 1 that has a son C and has a son 2). On ^I’s death, his undivided 

. j interest will pass to the surviving coparceners, B, C and D. Q 

^ ^ cannot, while the family remains joint, claim for himself a moiety 

of the income alleging that it represents his father’s share. But if 
the family come to a partition, C will take one-half of the property, that being his father’s 
share, and B and D will take the other half : see sec. 321 below. 

iy) Katama Natchiarw. The Rajah of SJnvagunga (1038) 13 Luck. 241, 168 I.C. 268, (’37) 

(1863) 9 M I.A. 543 615 ; Mnsammai A.O. 327, 

Lakhpaii v. Pameskitar (1930) 5 Luck. (a) Fakirchand v. Motichand (1883) 7 Bom. 438, 

631, 125 I.C. 414, (’31) A.O. 108. (t) Lakshmanan Chettiar v. Srinivasa Iyengar 

(z) Sheo Qopal v. Finn Qanesh Das Ram Gopal ^ 



256 


HINDU LAW. 


Ss. 

22“,230 


Sub-sec. (2), clause (i). — According to the Mitakshara law as applied in the Bombay 
and Madras Fresidencies, a coparcener can sell or mortgage his interest in the coparce- 
nary property, but not according to that law as applied in Bengal and the United 
I’rovinoes (sec. 260). Therefore, in Bombay and Madras, it a coparcenary consists ol A 
and B, and A sells his interest to X, and then dies, B cannot claim A’s interest by sur- 
vivorship. That interest has passed to X by purchase. But no Hindu governed by 
the Mitakshara law can dispose of by gift or will his undivided interest in coparcenary 
property in any part of British India [secs. 258, 368]. Therefore if A makes a gift by 
way of bequest ol his undivided interest in the coparcenary property to X, that interest 
will not on his death pass to X, but it will pass to B, the surviving coparcener. 

Clause (ii). — A and B are coparceners. C obtains a decree against A and attaches 
-I’s interest in the coparcenary property. A then dies. A’s interest having been 
attached in his lifetime B is not entitled to that interest by survivorship, sec sec. 289. 
C is entitled to have A’s interest sold in execution even after A's death. But if C had 
merely obtained a decree against A, and no attachment had been levied on A’s interest 
in A’s lifetime, H’s interest would pass to B by survivorship unless A happened to be B'a 
father or grandfather or great-grandfather in which case C could attach A’s interest 
even after A's death. [The Code of Civil Procedure, 1908, secs. 53 and 50]. See 
sec. 289 below. 


Clause {Hi). — A and B are coparceners. A becomes insolvent and a vesting order 
is made in insolvency. The effect of this order is to vest A’s interest in the coparcenary 
property in the Official Assignee. A then dies. B is not entitled to A'a interest by 
survivorship. That interest will remain vested in the Official Assignee for the benefit 
of A's creditors. 


230. Separate property. — ^Property acquired in any of the 
following ways is the separate property of the acquirer ; it 
is called “ self-acquired” property, and is subject to the 
incidents mentioned in sec. 222 above : — 


(1) Obstructed heritage . — Property inherited as ob- 
structed heritage {sapratihandha daya), that is, 
property inherited by a Hindu from a person 
other than his father, father’s father, or father’s 
father’s father [see ss. 218 and 223, sub-s. (2)]. 

Property inherited as unobstructed heritage (apratibandha daya) is ancestral ; see 
sec. 223, sub-sec. (I). 


As to property inherited from a maternal grandfather, see sec. 223, sub-sec. (2). 

(2) Gift . — A gift of a small portion of ancestral move- 

ables made through affection by a father to his 
male issue is his separate property (c) [s. 225]. 

As to gifts and be<iuest8 of separate property by a father to his sonSy see sec. 223 
sub-sec. (5). 


(3) Government grant . — Property granted by Govern- 
ment to a member of a joint family is the 
separate property of the donee (d), unless it 
appears from the grant that it was intended for 
the benefit of the family (e). 


(c) See sec. 225, and the cases there cited. 

(rf) Katama Natrhair v. Uajah of Shivagunaa 
(1863) 9 M.I.A. 543, 610. 


(e) Sri Mahnnt Govind v. Sitaram (1890) 21 All. 
53, 20 I.A. 19.). 



SEPARATE PROPERTY. 


257 


(4) Property lost to family. — ^Ancestral property lost 

to the family, and recovered by a mSmber 
without the assistance of joint family property. 
See sec. 232 below. 

(5) Income of separate property. — The income of 

separate property, and purchases jnade with such 
income (/). 

(6) Share on partition. — Property obtained as his share 

on partition by a coparcener who has no male 
issue. See sec. 223 (4) above. 

(7) Property held by sole surviving coparcener . — 

Property held by a sole surviving coparcener, 
when there is no widow in existence who has 
power to- adopt (g). 

(8) Separate earnings . — Separate earnings of a member 

of the joint family [sec. 231]. 

(9) Gains of learning. — All acquisitions made by means 

of learning are now declared by the Hindu Gains 
of Learning Act, 1930, to be the separate property 
of the acquirer [s. 231A]. 

It is not to be supposed that every property held by a coparcener is coparcenary 
property. A coparcener may possess separate property of his own and such property is 
entirely at his disposal ; see sec. 222 above. Thus the nine kinds of propeHy described 
in this section are separate property. Sejxirate property is also called self’Ocquired 
property. Self-acquired property, in its technical sense, means property obtained by 
a Hindu without any detriment to ancestral ’property. As to property described in els. (1), 
(2), (3) and (5) of this section it is clear that it cannot be said to be at^^uired at the expense 
of the patrimony or ancestral estate. Such property is, therefore^ self-acquired in the 
technical sense of the term. As to property described in cl. (4), it is a question of fact 
as to whether it constitutes self-acquired property or not. In practice the expression 
“ self-acquired ” property is used as referring to property acquired by a Hindu by 
his own exertions without the assistance of family funds. 

231. Separate earnings— gains of science. — The income of 
a member of a joint family is his separate property, if it has 
been obtained — 


(a) by his own exertions, and 

(b) without “ any detriment to the father’s estate,” 
that is, without the aid of joint family property {h). 


(/) Krishnaji v. Moro Mahadev (1891) 15 Bom 
S2. 

(j 7 ) See Backoo v. Mankorebai (1907) 31 Bom. 
373, 34 I.A. 107. 


(A) Sonwsutidara\. 2S Mad. 386. 

Rajamma v. Ramihrishnayya (1905) 
29 Mad. 121 [insurance premium paid 
out of aelf-acquir«d property— insurance 
money held to be separate property] 


n 


Ss. 

230,231 



258 


HINDU LAW. 


«. But,^ is joint family property if it has been earned at the 
231A expense of joint family property (i). 

For instance gifts to a Pnrohit for private services rendered by him are his separate 
property (j). 

A member of a joint family can preempt the property of the family sold by the 
manager provided he does it out of his separate funds and intends to keep it as his separate 
property (i). 

The consent by a member of a joint family to the sale of family property by the 
manager does not make him vendor and he can preempt the property (1). 

231A. Gains of learning— gains of science. — (i) Before 
the Hindu Gains of Learning Act, 1930, two propositions were 
well established, namely, (1) that income earned by a member 
of a joint family by the practice of a profession or occupation 
requiring special training was joint family property, if such 
training was imparted at the expense of joint family property ; 
and (2) that gains made by personal labour and without the aid 
of joint family funds by a member of a joint family, who was 
maintained out of joint family funds and received no more 
than an ordinary education suitable to his position as a member 
of the family, were the self-acquired property of such member, 

( 2 ) By the Hindu Gains of Learning Act it is provided 
that notwithstanding any custom, rule or interpretation of 
the Hindu Law, no gains of learning shall be held not to be the 
exclusive and separate property of the member of the joint 
family who acquires them merely by reason of — 

(a) his learning having been, in whole or in part, im- 
parted to him by any member, living or deceased, 
of his family, or with the aid of joint funds of his 
family, or with the aid of the funds of any member 
thereof, or 

(b) himself or his family having, while he was acquiring 
such learning, been maintained or supported, 
wholly or in part, by the joint funds of his family, 
or by the funds of any member thereof. 

“ Learning ” is defined in the Act as meaning education, 
whether elementary, technical, scientific, special or general. 


(i) Tottempudi v. Tott&mpudi (1904) 27 Mad. 
228 ; Somasundara v. Ganga (1004) 28 
Mad 886 ; Hajamma v. HamakrUhnayya 
(1906) 29 Mad. 121 Unsurance premium 
piid out of Belf-acquired property— 
insiir.moe rooney held to be separate 
property). 


(j) Uomo Paihak v, Sarmandi Pathak (1934) 
56 All. 1026, 151 I.C. 11, (’34) A.A. 851. 
(fc) Ram Hareih v. Msi. Oanga Dei (1944) 
Luck. 257. 

(/) HitcanehaU Singh v. Ayodh.ua Singh (1929) 
4 Luck. 370 (F.B.) 



ANCESTRAL PROPERTY. 


259 


and training of every kind which, is usually intended to enable 
a person to pursue any trade, industry, profession or avocation 
in life. 

“ Gains of learning ” are defined as meaning all acquisi- 
tions of property made substantially by means of learning, 
whether such acquisitions be made before or after the com- 
mencement of the Act, and whether such acquisitions be 
the ordinary or the extraordinary result of such learning. 

The Act came into force on the 25th July, 1930. It is set out in Appendix X below. 
Under the Act all gains of learning, whether made before or after the commencement of the Act 
constitute the self-acquired property of the acquirer. 

The Hindu texts classed “ gains of science,” if the knowledge of “ science ” was 
acquired at the expense of joint family funds, as joint family property. The term 
science ” was interpreted by the Courts to mean special as distinguished from ordinary 
learning. It was accordingly held that gains of learning imparted at the expense of joint 
family property were joint family property if the learning was special learning but they 
were self-acquired property if the learning was ordinary learning (m). The Hindu Gains 
‘ of Learning Act places gains of both kinds on the same footing, and declares all gains 
‘of learning, whether the learning be special or ordinary, to be the self-acquired property 
- of the acquirer, 

232. Eecovery of ancestral property lost to the family,— 
Where the members of a joint family have been wrongfully 
dispossessed or adversely kept out of possession of joint pro- 
perty for a long time, and such property is subsequently re- 
covered by an indiAudual member of the family without the 
assistance of joint funds, then, if the property is recovered by 
the father, he takes the whole as his separate or self-acquired 
property, whether it be moveable or immoveable ; but if it 
is recovered by any other member of the family, then, if the 
property be moveable, he takes the whole as his separate or 
self-acquired property, but if it be immoveable, be takes one- 
fourth first as reward for the recovery, and the remainder 
has to be equally divided among all the coparceners including 
the recoverer (»i). 


(m) Mdharam v. Rewachand (1918) 4,5 1. A 41, 45 
Cal. 666, 44 I.C. 269, (’17) A.PC. 105 [bro- 
ker and moneylender]; Gokal Cha^ v. 
Hukum Chand — Nath Mai ^921) 48 I.A. 
162, 2 Lah. 40, 60 I.C. 379, (’21) A.PC. 35 
[Indian Civil Service] ; Luximon Row 
V. Muller Row (1831) 21 Knapp. 60 
[Prime Minister] ; Lakshman v. Jamnabai 
(1882) 6 Bom 225 [pleader and Sub- 
,Tudge] ; Pauliem v. Pauli^^n (1877) 1 Mad. 
252, 4 I..\. 109 ; Chalakonda v. Chalakonda 
(1864) 2 Mad. H. C. 56 [dancing girl] ; 
Durvasula v. Durvasula (1872) 7 Mad H. 
C. 47 [fdeader] ; Boologam v. Suornam 
(1882) 4 Mad. 330 [dancing girl] ; Bai 
Manrhha v. Narotamdas (1868) 0 Bom. 
H.C.A.C. 1 [vakil] ; Dhunookdharee v. 
Qunpat (1868) 11 Beng. L. B. 201, 10 W. 


R. 122 ; Jugoiohandas v. Mangaldae (1836> 
10 Bom. 528, 555-559 [mill manager] ; 
Kri^hnaji v. Moro Mahadev (1391) 15 Bom. 
32 [karkiin] ; Lachmin Kuar v. Debi 
Prasad (1898) 20 .All. 435 [army 

contractor] ; Durga Dai v. Ganesh Dal 
(1910) 32 All. 305, 5 I.C. 400 [astrologer], 

(n) Bagaha v. Trimbak (1910) 34 Bom, 106, 
4 I C. 255 ; Visalatchi v. Annasioamxf 
(1870) 5 Mad. H. C. 150 ; Bissesur v. 
Scetul Chunder (1868) 9 W.R. 69 s.c., 
8 W.R. 13 ; Shamnarain v. Rughoobur^ 
dgal (1878) 3 Cal. 508, 511 ; Jugniohandas 
V. Mangaldas (1886) 10 Bom. 528, 551 ; 
Bolakee v. Court of Wards (1870) 14 W.R. 
34 , Naraganti v. V enkatachalpati (1882) 
4 Mad, 250, 250, 


231A,232l 



260 


HINDU LAW. 


Ss. 

232,233 


The rule laid down in this section applies only to coparcenary property lost to the 
family, but recovered by a coparcener without the aid of family funds from a stranger 
holding adversely to the family. It does not apply to any other case. Thus where certain 
family property was allotted to a member of one branch of the family hi virtue of a com- 
promise, and was subsequently purchased by a member of another branch with his own 
money, it was held that it was the self-acquired property of the purchaser, and that his 
brother who was joint with him was not entitled to any interest in it (o). In the last 
mentioned case it was contended on behalf of the brother that one-fourth of the property 
should be given to the purchaser, and that the remaining three-fourths should be divided 
equally between the two brothers, but this contention was overruled. 


233. Presumption as to coparcenary and coparcenary 
property. — Where a suit is brought by a Hindu to recover 
property, alleging that it is his self-acquired property, and the 
defendant contends that it is joint family property, or where 
a suit is brought by a Hindu for partition of property alleging 
that it is joint family property and the defendant contends 
that it is his self-acquired property, the question arises upon 
whom the burden of proof lies. The following are the leading 
rules on the subject. — 


(i) Presumption that a joint family continues joint . — 
Generally speaking, “ the normal state of every Hindu family 
is joint. Presumably every such family is joint in food, worship 
and estate. In the absence of proof of division, such is the 
legal presumption” (p). In other words, “ given a joint Hindu 
family, the presumption is, until the contrary is proved, that 
the family continues joint ” (g). The presumption of union is 
the greatest in the case of father and sons (r). “ The strength 

of the presumption necessarily varies in every case. The 
presumption is stronger in the case of brothers than in the case 
of cousins, and the farther you go from the founder of the fa mil y 
the presumption becomes weaker and weaker ” (s). The 
reason is tlmt brothers are for the most part undivided ; 
second cousins are generally separated ” (f) ; and third cousins 
are for the most part separated [u). 


In what cases does the above presumption apply ? — The 
presumption that a Hindu family continues to be joint is 


lo) Bajaba v. Trimbak (1910) 34 Bom. 100, 4 
I.C. 255. 

<p) Neelkisto Deb v, Beerrhunder (1869) 12 M.I. 
A. 523, 540 ; Narag»ntj/ v. Vengama 
(1R61) 9 M.I.A. 66, 92 ; Betian Persad 
V. Radha Beeby (1856) 4 M.I.A. 137, 168. 
See aUo Cheetha v. Miheen Lall (1867) 
11 M.I.A. 369 ; Mfit. Bhagwam v. Mohan 
Singh (1925) 29 C.W.N. 1037, 88 I.C. 385, 
(’25) A. PC. 132 [P.C.]. 

(,) ^agethar Baksh Singh v. Ganeeha (1920) 47 
I.A. 57, 70, 42 All. 368, 381, 56 I.C. 306, 


(’20) A. PC. 46 ; Raghubardyayal v. Ram- 
dulare (1928) 6 Rnnz. 367, 111 I.C. 839, 
(’28) A. K. 206 ; Pandit Mohanlal v. 
Pandit Ramdayal (1941) 16 Luck. 708, 
194 I.C. 61, (’41) A. 0. 331. 

(»■) Malakrhand v. Hira Lai (1930) 11 Luck. 

449, 157 I.C. 945, (’35) A.O. 510. 

(«) Yellappa v. Tippanna (1929) 56 I.A. 13, 19, 
53 Bom. 213, 114 I.C. 13, (’29) A.PC, 8. 
(0 Moro Viihianaih v. Oanesh (1873) 10 Bom. 
H.C. 444, 468. 

(«) Yellappa v. Tippanna, supra. 



PRESUMPTIONS OF LAW. 


261 


mainly available when the question arises whether a specific 
property which was admittedly joint at one time has continued 
to be joint or it has ceased to be joint by virtue of a separation. 
If a joint family possessed property which was admittedly 
joint, the presumption would be that the property continues, 
to be joint, and the burden would lie upon the member who 
claims it as his separate property to prove that there was a 
partition and that he got it on such partition (v). The pre- 
sumption is peculiarly strong in the case of brothers {w), but 
almost nil in the case of third and fourth cousins (x). 


Where some members alienated joint family property and others sued to set aside 
that alienation and compromised the suit by a payment to the alienee out of joint funds 
and retained a portion of the property sold, it was held that that portion belonged to 
the whole family (y). 


(lA) Even where a Hindu undivided family has ceased 
to be such in law, it may be deemed to an undivided family 
for the purposes of the Income Tax Act under sec. 25 A of that 
Act (z). 

(2) No presumption that a joint family possesses joint 
property . — There is no presumption that a family, because it is 
joint, possesses joint property or any property (a). When in a 
suit for partition, a party claims that any particular item 
of the property is joint family property (6), or when in a suit on 
a mortgage, a party contends that the property mortgaged is 
joint family property (c), the burden of proving that it is so 
rests on the party asserting it, though circumstances may 
readily cause the onus to be discharged. To render the property 
joint the plaintiff must prove that the iamily was possessed 
of some property with the income of which the property could 
have been acquired {d) or from which the presumption could 
be drawn that all the property possessed by the family is joint 
family property (e) or that it was purchased with joint family 


(f) See Frit Koer v. Mahadeo Purshad (1895) 
22 ChI. 85, 21 I.A. 134. 

(te) Nageshar Baksh Singh v. Gane'tha (1920) 
47 I A. 57, 42 All. 308, 3§1, 56 I.C. 300, 
(’20) A.PC. 46. 

(c) I’ellappa v. Tippanna (1929) 56 I.A. 13, 53 
Bom. 213, 114 I.C. 18, (’29) A.PC. 8. 

(V) Bhagwan Singh v. B*'har\, Xal (1938) Naz. 

221, 172 I.C. 43, (’37) A.N. 237. 

(z) Sardar Bahadur Sardar Itidra Singh v. 
The Commissioner of JncoT}%e-tax, Bihar & 
Orissa (1943) 22 Pat. 55, 206 I.C. 609. 
(’43) A.P. 169. 

(a) Kamnla Kant Qopalji v. Madhavji Maghji 
(1935) 59 Bom. 573, 37 Bora. L. B. 405, 
158 I.C. U5, (’35) A.B. 343. 

(5) Annamalai Chetty v, Suhriinianxan Cketty 
(1929) 31 Bom. L.R. 280, II3 J.C 897, ('29) 


A.PC. 1 ; Jogi Reddi v. Chinnabhi Reddi 
(1929) 56 I.A. 6, 52 Mad. 83, 114 I.C. 5, 
(’29) A.PC. 13, l3 not an authority for the 
propoeltion in the text. The suit was by 
the plaintiff against his brothers and his 
Bister’s son who was a Christian, and the 
contest was as to certain property stand- 
ing in the name of the sister’s son. 

(c) Rai Shadi Lai v. Lai Bahadur ^933) 35 

Bom. L.R. 308, 142 I C. 739, (’33) A.PC. 
85. 

(d) V enkairamayya v. Seshamma (1937) Mad. 

1012, 170 I.C. 107, (’37) A.M. 538, 
Vythxanatha v. Varadaraja (1938) Mad, 
696, (’38) A.M. 841 ; Janakamma v. 
Chinnarao (1945) Mad. 378. 

(«) Kamala Kant Qopalji v. Madharji Maghji, 

^ supra. 


S.233 



262 


HINDU LAW. 


r>r, 

S. 233 funds, suuli as the proceeds of sale of ancestral property (/) or 
by joint labour. None of these alternatives is a matter of legal 
presumption. It can only be brought to the cognizance 
of a Court in the same way as any other fact, namely, by 
evidence {g). 

When a nucleus of joint family property is proved or 
admitted a presumption arises that the whole of the property of 
the joint family is joint including any acquisition by a member 
of the joint ftimily [h). But no such presumption would arise if 
the nucleus is such that with its help the property claimed to be 
joint could not have been acquired. In order to give rise to 
the presumption the nucleus must be such that with its help 
the property claimed to be joint could have been acquired (i). 
Such being the presumption, if any member of the family 
claims any portion of the property as his separate property 
the burden lies upon him to show that it was acquired by 
him in circumstances which would constitute it his separate 
property. He may do so by showing that the income of the 
existing ancestral property was employed in other ways {j). 
If he adduces no evidence, the presumption that the property 
was joint family property, must prevail (k). The mere fact 
that it was purchased in his name and that there are receipts 
in his name respecting it does not render the property his 
separate property, for all that is perfectly consistent with the 
notion of its being joint property. But if, in addition to the 
fact that certain property stands in the name of one of the 
members, A.B., there be these further facts, namely, that some 
other members of the family had acquired separate property 
with their own moneys and dealt with it as their own without 
reference to the rest of the family, and that A.B. was allowed 
by the family to appear to the world to be the sole owner, the 
presumption that the property is joint is weakened, and the 


(/) Jtamnaih v. Chiranji Lai (1935) 57 AJJ. 605 
[F.B.]. 155 I.C. 132, ('35) A.A. 221. 

(s) Shiv Qolam v. Baran (1865) 1 Beng. L.E., 
A.C. 164 ; Moolji v, Oohuldas (1684) 

8 Bom. 164 ; Nanabhai v. Achratbai (1838) 
12 Bom. 122 [no presumption that pro* 
perty is ancestral] ; Toolsei/daa v. Premji 
(1889) 13 Bom. 61 ; Dwarka Prasad v, 
Jamna i>aa (1911) 13 Bom. B-E. 133, 

9 I.C. 948 ; Bam Kiahan v. Tunda Atal 
(1011) 33 All. 677, 10 I.C. 543; Daji 
V. Laxman (1927) 29 Bom. L.E. 122, 
100 r.C. 937. (’27) A.B. 110 ; Sanwal Bos 
V. Kure Mai (1928) 9 Bah. 470, 100 LC. 
770, ('28) A.B. 224; Musammat Bnj 


Kunwar v. Ttai Bahadur Bandit Sanalia 
Prasad (1930) 5 Luck. 400, 123 I.C. 849, 
(’30) A.O. 39 [no presumption that pro- 
perty ancestral], 

(A) QuXahchand Lala v. Mannital Lala (1941) 
18 Luck. 302, 192 I.C. 643, (’41) A.C.l, 
230. 

(i) Bahu Bhai Girdhar Lai v. Ujamlal Sar^ 

govindas (1937) Bom. 708, 39 Bom. 
L.R. 846, 171 I.C. 623, (’37) A.B. 446, 

(j) Sher Mohammad Khan v. Ramratam (1938) 

Nag. 233, 173 I.C. 572, (*38) A.N. 87, 

(fc) Madho Tewari v. Mata Din Tewari (1935) 
10 Luck. 61, 149 I.C. 244, (’34) A.O. 293. 



JOINT FAMILY BUSINESS. 


263 


burden of proving that it is joint will lie on those who allege 
that it is joint {1). 

A and his two sons B and G live as members of a joint family. It is proved that in 
the year 1890 the father had in his hands a considerable nucleus of ancestral property^ 
In the year 1895 the father purchases certain immoveable property in his own name, and 
bequeaths it by his will to B, alleging in the will that it was his self-acquired prop^fty. 
Upon these facts the presumption is that the property was purchased by the father out 
of the income of ancestral property, and the property is therefore joint. The burden of 
proving that the subsequently acquired property was the separate property of the father 
lies on him who alleges that it was his separate property, that is it lies on B {m). The 
statement in the father’s will that the property was his self-acquirqdr property is not 
evidence upon the question whether the property was joint or self-acquired (n). 

(3) A member of a joint family who engages in trade c^n 
make separate acquisitions of property for his own beneht ; 
and unless it can be shown that the business grew from a 
nucleus of joint family property, or that the earnings were 
blended with joint family estate, they remain his self-acquired 
property (o). See sec. 234 (4). 

In the case of members of a joint family, the mere fact that each or any of them 
had small transaotione of his own does not prove that they were necessarily separate (p). 

(4) Where it is proved or admitted that a partition has 
already taken place, the burden lies upon him who alleges that 
a portion of the family property is still jomt property (g). 

A Hindu, who had a son A and A's son B living with him, made a deed of gift of his 
property in favour of his grandson B. The property was described in the deed as the 
self-acquired property of the donor, and the deed was attested by his son. It was shown 
that the son had knowledge of the contents of the deed. It was held that the above 
facts led to the inference that the property was self-acquired (r). 

(5) Onus, however, as a determining factor of the whole 
case, can only arise if the Court finds the evidence pro and con 
so evenly balanced that it can come to no definite conclusion. 
Then the onus will determine the matter. But if the Court 
after hearing and weighing the evidence comes to a definite 
conclusion, the need for placing the onus does not arise (s). 


(J) Dhurm Das v. Shama Soondri (1843) 3 MJ. 
A. 229, 240 ; Oopetkriat v. Oungapersad 
(1854) 6 M.I.A. 53 [purchase in name of 
son] ; Prankiehen v. Mathoora Mohan 
(1865) 10 M.I.A. 403, 411-412 ; Umnthnaih 
V. Qourunath (1870) 13 M.I.A. 642 ; 
Sree Raja Yanumula v. Yanumula (1870) 
13 M.I.A. 333 ; Bodh Singh v. Qunesh 
Chunder (1874) 12 Beng: L.R. (P.C.) 
317 ; Bissessuar Lall v. Luchmassur Singh 
(1879) 5 Cal. L.R. 477, 479, 6 1. A. 233, 236 j 
Gajendar v. Sardar Singh (1896)18 All, 176; 
Abhaidat Singh v. Rai7Ao(1926) 1 Luck. 1, 
91 I C. 076, ('26) A.O. 77 ; Johnston v. 
GopcU Singh (1931) 12 Lah. 546, 655-556, 


133 I.C. 628, (’31) A.L. 419. See also 
AUit Singh v. Thakur Singh (1908) 35 I. A. 
206, 35 Cal. 1039. 

(m) Loi Bahadur v. Kanhaiya Lai (1907) 29 All. 

244, 34 I.A. 85, 

(n) Tottempudi v. Tottempudi (1904) 27 Mad. 228. 

(o) Annamalai Chetty v. Subramanian Chetty 

(1929) 31 Bom. L.R. 280, 113 I.C. 897, 
(•29) A.PC. 1. 

(p) Deonarain v. Agyan Ram (19271 31 C.W.N. 

633, 101 I.C. 249, (’27) A.PC. 52. 

(ff) Vinayak v. Dattoo (1901) 25 Bom. 367. 

(r) Kallianji,\. Bezanji (1908) 32 Bom. 512. 

(«) Robins v. National Trust Co. (1927) A.C. 
515, 520. 


S.233 




264 


HINDU LAW. 


Sfc In the words, the question of onus, at the close of a case, only 
233, 234 becomes important if the circumstances are so ambiguous that 
a definite conclusion is impossible without resort to it {t). 


234. Ancestral business its incidents. — (^) Hindu . 

law a business is a distinct heritable asset. Where a Hindu dies 
leaving a business, it descends like other heritable property 
to his heirs. If he dies leaving male issue, it descends to them. 
In the hands of the male issue it becomes joint family business, 
and thq firm which consists of the male issue becomes a joint 
family firm. The joint owuxership so created between the male 
issue is not an ordinary partnership arising out of a contract, but 
a family partnership created by the operation of law {u). There- 
fore, the rights and liabilities of the coparceners constituting 
the family firm are not to be determined by exclusive reference 
to the provisions of the Indian Partnership Act, 1932, but 
must be considered also with regard to the general rules of 
Hindu law which regulate the transactions of joint farn.ilies(v). 
A Hindu joint family business does not cease to be so if in 
addition to the heii's of the deceased owner, it is also owned by 
his daughter married to a Gharjamai and by other members 
and relations who are de facto members of the family, provided 
the proceeds of such business are utilised for the legitimate 
expenses of the family {w). The following are the points of 
distinction between a partnership and a joint Hindu family 
firm: — 


(i) Dissolution by death.— k. joint family firm is not dis- 
solved by the death of a coparcener (x) . An ordinary partner- 
ship is dissolved by the death of a partner. 

(ii) Right to accounts . — A coparcener is not entitled, on 
severing his connection with the family firm, to ask for accounts 
of past profits and losses {y) [sec. 238]. It is otherwise in the 
case of a partner. 

(iii) Power to contract debts . — The manager of a joint 
family has an implied authority to contract debts and pledge 


(0 5imc Darby & Co. v. Official Asuifnee 
(1928) 30 Bom. L.R. 290. 291, 107 I.C. 
233, ('28) A.PC. 77 ; Yellappa v. Tippanna 
(1029) 56 I.A. 13, 53 Bom. 211, 114 I.C 
13, (’29) A.PC. 8. 

(u) Lola Baijnalh Prasad v. Ram Gopal Larhmi 
Narayan (1938) 1 Cal. 369 ; Gulahrkand 
Lola V. Mannilal Ixxla (1941) 16 Luck 
302, 192 I.C. 643, (’41) A.O. 230 
(y) RanUal v. Dakhmichand (1861) 1 Bom H.C. 
App. 11. 


(w) Nibaran Chandra Saha v. LaUih Mohan 

Drindaban Saha (1938) 2 Cal. 368. 

(x) Samalhhai v. Somrshuar (1881) 5 Bom. 38 . 

Haroon Mahomed, in the matier of (1890) 
14 Bom. 180, 104 ; Lala Baijnath Prasad. 
V. Ram. Qopal Lachmi Sarayan (1938) 1 
Cal. 369. 

(y) 5 Bom 38, supra ; Ganpat v. Annaji (1899) 

23 Bom. 144. As to the rights of a minor 
coparcener, see Damodardas v. DUamram 
<1893) 17 Bom. 271, 279. 



JOINT FAMILY BUSINESS. 


265 


the credit and property of the family for the ordinary pm’poses 
of the family business ( 2 :). Such debts, if incurred in the 
ordinary course of business, are binding on the family property 
including the interest of the minor coparceners therein [a). 
But the manager alone has such authority ; no other copar- 
cener has it (6). In the case of an ordinary partnership, any 
partner can bind his coparceners by debts incurred in the 
ordinary course of the partnership business (the Indian Part- 
nership Act, 1932 , s. 19). See sec. 240. 


(iv) Extent of liability for debts . — In the case of an 
ordinary partnership, it is not only the share of each partner in 
the partnership property which is liable for the pa 5 mient of the 
partnership debts, but the separate property of each partner 
is also liable. In the case of debts contracted by a manager, 
in pursuance of his implied authority in the ordinary course 
of the family business, there is a distinction between the liability 
of a manager and the liability of his coparceners. The manager 
is liable not only to the extent of his share in the joint family 
property, but being a party to the contract, he is liable person- 
ally, that is to say, his separate property is also liable. But 
as regards the other coparceners, they are liable only to the 
extent of their interest in the family property, unless, in the 
case of adult coparceners, the contract sued upon, though 
piu-porting to have been entered into by the manager alone, 
is in reality one to which they are actual contracting parties, 
or one to which they can be treated as being contracting parties 
by reason of their conduct, or one which they have subsequent- 
ly ratified (c) ; and, in the case of minor coparceners, unless 
the contract has been ratified by them on attaining majority (d). 
See cl. V. below, and sec. 240 (4). 


(?) Bamlal v. Lak michand (1861) 1 Bom. H.C. 
App. li ; Betnola v. Mohun (1880) 5 C.il. 
792 ; Rampariab v. Foolibai (1896) 20 
Bora. 767, 777-779 ; Sakrabhai v. Maganlal 
(1902) 26 Bom. 206, 215 ; Morrison v. 
VerschayU (1901) 6 C.W.N. 429; Ram 
Krishna v. Ratan Chand (1931) 08 I. A. 
173, 53 All. 190, 132 I.C. 613, (’31) A.PC. 
136 ; Bishin Singh v. Kedar Nath (1921) 
2 Lah. 159, 62 I.C. 800, (’21) A.L. 61 ; 
Mt. Champa v. Official Receiver, Karachi 
(1934) 15 Lah. 9, 144 I.C. 630, (’33) A.L. 
901. 

(a) Ramnath v. Chiranji Lai (1935) 57 All. 605 

(F.B.), 155 I.C. 136, (’35) A.A. 221. 

(b) Krishna v. Krishnasami (1900) 21 MaJ. 

597, 600. 

(■c) Ookal Chand v, Sukam Chand — Nath Mai 
(1921) 48 I. A. 1C2, 174, 2 Lah. 40, 52, 60 
I.C. 379, (’21) A.PC. 35 ; Chalamayya v. 


Varadayya (1899) 22 Mad. 166- Samal- 
bhai V. Somejfhwar (1881) 5 !^m. 38; 
Sakrabhai v, Maganlal {ld02) 26 Bom. 206 
at p. 215 (F.B.l; Baldeo v. Mobarak (1902) 
29 Cal, v583 ; Gokal v. Amarchand (1907) 
0 Bom. L.R. 1239 ; Joharmal v, Chetram 
(1915) 39 Bora. 715, 28 I.C. 538, ('15) 
A.B. 115 ; Shiv Charan Das v. Bari Ram 
(1936) 17 Lah. 395, 170 I.C. 418. (’37) 
A L, 247 ; VM.C.T.V.R. Chettiarv. C.A. 
P.C. Ghetliar (1930) 14 Rang. 122, 162 
I.C. 184, (’38) A.R JrtJO ; Rm L.M.L.U. 
Alagamtml A-hi <t* Ors v. Vr. PL. M. 
Palaniappa Chettiar & Ors. (1940) 
Mad. 1012, (*40) A.M. 580. 

(d) Uaroon Mahomed, in ike matter of (1890) li 
Bom. 189 ; Official Assignee v. Paianiappa 
(1918) 41 Mad. 824, 49 I.C. 220, ('19) A.M. 
690, See also cases cited in the preceding 
note. 



266 


HINDU LAW. 


Liability for lorU . — The aona who inherited a mining leaae from their father were 
held liable for damagea to the buildings above the mine caused by the working of the mine 
by the father, but only to the extent of the efiects of the joint family in their hands (c). 

(v) Minors. — In the case of an ordinary partnership 
where a partner is a minor, his share (/) alone in the partnership 
property is liable for the partnership debts. His separate 
property is not liable, unless he accepts the partnership on 
attaining the age of majority [Indian Partnership Act, 1932, 
s. 30]. The same rule applies to the case of minor coparceners. 
That is to say, the manager can pledge the family property 
including the minor's interest therein for the purposes of the 
family business (g). But the minor is liable to the extent only 
of his interest in the family property (h) ; his separate property 
is not liable for the payment of debts contracted by the 
manager, unless the minor accepts the partnership on attaining 
majority {i)i i See note below, “ Minor’s share.” 


(2) rNeiv Business. — Where a father was carrying on 
brokerage business in agricultural commodities and the son 
was doing similar business though the commodities were 
not exactly identical, it was held that the latter business was 
not a new business {j). The extension of a joint family 
business for the manufacture of articles, ejusdem generis 
with the articles previously manufactured, i.e. when the class 
of persons who manufacture the one usually manufacture 
the other is not a new business {h). In a Dayabhaga case 
the Judicial Committee held that the manager of a joint 
family cannot impose upon a minor member of the family the 
risk and liability of a new business started by himself and the 
other adult members (Z). On the ground that the reasons 
for the decision equally govern Mitakshara families also, this 
principle has been applied to them by the Indian High 


(e) Amhalal Kiwru v. hxhar Uosiery Mills, Ltd. 
(1937) 10 Fat. 545, 172 I.C. 19, ('37) A.FC. 
1657. 

(/) The share of which s. 247 of the Contract 
Act speaks is no more than a right to 
participate in the property of the Ann 
after its ohligations have been satisfied : 
Sanyaai Charan Mandui v. Krishnadhan 
Banerjx (1922) 40 I.A. 108, 49 Cal. 560, 
67 I.C. 124, (’22) A.FC. 237. 

(g) Ramlal v. Lakhmichand (ISQl) 1 Bom. H.C. 
App. li ; Jiaffunalhji v. The Bank of 
Bombay (1910) 34 Bom. 72, 2 I.C. 173 ; 
Sanka v. The Bank of Burmah (1911) 35 
Mad. 692, 694-696, 11 I.C. 79; Sanyasi 
Charan v. Aiutosh (1915) 42 Cal. 225, 233, 
26 I.C. 836, (’15) A.C. 482. 


(A) Chockalingain v. MathukaTUVvan (1933) 
Mad. 1019, (’38) A.M. 348. 

(i) Bishairtbhar v. Shea Narain (1907) 20 All. 

166 ; Bishambhar v. Fateh-Lal (1907) 29 
All. 176 ; Joykisto v. Nittyanund (1878) 
3 Cal. 738 ; Rampartab v. Foolibai (1896) 
20 Born. 767, 777-779 [business inherited 
by a minor carried on by his guardianl ; 
Lutchmanen v. 5ifa (1809) 26 Cal. 349 ; 
v. Chxdaraboyxna (1903) 26 Mad. 

(j) Bhutju'an Singh v. Behari Lai (1038) Nag. 

/IX <'37) A.N. 237. 

(X-> Bahadursingh v. Girdharlal (1942) Xag. 
/IX c (’42) A.N. 39. 

(*) Sanayasx Charan Mandal v. Krishnadhan 
Banerji (1922) 49 I A. 108, 40 Col. 560, 
67 I.C. 124, (’22) A.FC. 237. 



JOINT FAMILY BUSINESS. 


267 


Courts (m) and by the Judicial Committee (n). Even where 
the father is the manager, he is not entitled to mortgage the 
joint family estate in order to provide money for one of his 
sons to start a new business. Such a mortgage is wholly 
invalid against minor coparceners (o). Some of the senior 
members of a joint family took a lease of some lands and later 
'on executed a mortgage as security for the pajonent of the 
rent. Default having been made in the payment of rent, 
the mortgagee brought a suit on the mortgage and in execution 
of the decree made in the suit, some of the property was pur- 
chased by an auction purchaser. The latter having sued 
for possession it was held that as the transaction was a prudent 
venture and for the benefit of the family, the mortgage was 
binding on the family (p). 

As regards adult members it has been held in India that 
the manager cannot impose' even upon them the risk and 
liability of a new business started by him (gr), unless the 
business is started or carried on with their consent, express (r) 
or implied (s) or though started by the manager only, joint 
funds were afterwards utilised for the business to the advant- 
age of the joint family or its continuance was found beneficial 
to the family (i) or it was adopted as a family business 
by the other members who continued to enjoy the benefits . 
of the same {u). 


It has been held in Madras (v) that where a joint family 
consists of a father and sons, and the fatJier starts a new trading 
business, the business must be deemed to be ancestral, and 
the sons whether they be adults or minors are liable for 
debts incurred in the business to the extent of their shares in 


im) Vithal v. Skiiappa (1923) 47 Bum. 637, | 
72 I C. 659, (’23) A.B. 265 ; Inspector 
Singh V. Kharak Singh (1928) 50 All. 776, 
112 I.C. 881, (’28) A.A. 403. commented 
upon in Jagat -Varain v. Jfaffturarfas (1928) 

60 All. 909, 116 I.C. 484, (’28) A.A. 454 ; 
Bisivanalh Singh v, Kayastha Trading 
CoTporaiion (1929) 8 Pat. 450, 119 I.C. 
405, (’29) A.P. 422. But see 03i(nal 
Assignee v. Palaniappa (1918) 41 Mad. 
824, 835, 49 T.C. 220. (’19) A.M. 600; 
Ramnath v. Chiranji Lai (1935) 57 All. 
605, 155 I.C. 136, (’35) A.A. 221. 

-(rt) Benares Bank Ltd, v. Hari yarain (1932) 54 
All. 564, 59 I.A. 300, 137 I.C. 781, (’32) 
A.PC. 182. See also 2?am Krishna v. 
Ratanehand (1931) 58 I.A. 173, 53 All. 
100, 132 I.C. 613, (’31) A.PC. 136. 

<o) Qurumuk Singh v. Shiv Ram (1936) 17 Lah. 

53, 157 I.C. 416, (’35) A.L. 482 ; Ganesh ' 
Prasad Singh v. Sheo Govtnd Sahoo (1937) 

16 Pat. 719, 173 I.C. 242, (*38) A.P. 40. 


(j>) Chhotey Lai Chauduri v. Dalip A’cirain 
Singh (1938) 17 Pat. 3S6, (’38) A.P. 562. 
(^) Babu Lai v, Babu Lai (1941) All. 343. 195 
I.C, 571, (’41) A.A. 194, (1941) A.L.J. 
217. 

(r) Tammireddi v. (1922) 45 Mad, 

281, 70 I.C. 337, (’22) A.M. 236. 

(s) Mahabir Prasad v. Prasad (1024) 

40 All. 364, 79 I.C. 517, (’24) A.A. 379 ; 
[consent of adults to be presumed if 
family maintained out of the profits]. 

(0 ilamnatA v. Chtranji Lai (1935) 57 All. 605, 
156 I.C. 136, t’35) A.A. 221. 

(u) Budh Karan Chankani v. Thakiir Prasad 
Shah (1942) 1 Cal. 19. (’42) A.C. 311, 

(d) Venkaiasamiv. Pa/a«w»Ha (1029) 52 Mad. 
227, 117 I.C. 716, (’29) A.M. 153 (suit on 
I mortgage and as to a portion of tfae 

1 amount there was no antecedent debt.] 


S.234 



268 


HINDU LAW. 


S. 234 the joint family property ; and, further, that even if such 
business be not regarded as ancestral, the sons’ shares are 
liable for the debts incurred by the father in the business, 
and this liability arises out of the pious obligation of the sons 
to pay their father’s ' debts. If this decision is deemed to 
be authority for the proposition that a new business started 
by a father is ancestral for all purposes as regards his sons,' 
then, it is submitted it is no longer good law {w). ’When the 
sons merely give some help to the father in business, it does 
not become joint family business but after the sons grow 
up the father and sons by their conduct may make it apparent 
that it has become a joint family business (x). See note 
below, “ New business.” 


{3) Partnership with outsiders . — It is competent to the 
manager of a joint family business, acting' on behalf of the 
family, to enter into a partnership with a stranger {y). But 
not all members of the joint family, but only such of its 
members as have in fact, entered into partnership with the 
.stranger, become partners (z). The manager, no doubt, is 
accountable to the family, but the partnership is exclusively 
one between the contracting members including the manager 
and the stranger. Such a partnership would be governed by 
the provisions of the Indian Partnership Act, 1932, with 
the result that if the manager died, the partnership would be 
dissolved on his death. The surviving members of the family 
cannot claim to continue as partners with the stranger (a), 
nor can they institute a suit for a dissolution of the partnership, 
their position being no higher than that of sub-partners (6). 
Nor can the stranger partner sue the surviving members as 
partners for the manager’s share of the loss. His only remedy 
is to proceed against the manager’s estate, if any (c). But 
when a manager of a trading joint family enters into a partner- 
ship with strangers for the purpose of carrying on the same kind 
of business the other members are liable to the extent of then- 
interests in the family property (d). On a partition between 


(tc) Benares Bank Lid. v. Han Narain (1932) 
59 I. A, 300, 54 All. 504, 137 I.C. 781, (’32) 
A.PC. 182. 

(*) Kaxl'jski V Shanker (1945) All. 135. 

(y) Ramlal v. LachimchanU p861) 1 Bom. H.C. 
App. 11 ; Dhaffwun Sinjh v, Behan Lai 
(1938) Nag. 221. 172 I.C. 43, ('37) A.N. 237. 
(») Pichappa Chettiar v. Chockalingam Pillai 
(1934) 36 Bom. L R. 976 (P.C.), 150 I.C. 
802, (’34) A.PC. 192. 


(o) Sokkanudha v. Sokkanndha (1905) 2S Mad. 
344. 

(d) Ganqayt/a v. Venkataramiah (1918) 41 Mad. 

454, 43 I.C. 9, (’18) A.M. 37. 

(c) See Kharidar Kapra Co. v. Daya Kisen 
(1921) 43 All. 116, 58 I.C. 765, (’21) A. A. 
306. 

{d) Chockalinfjamv . Muthukaruppan (1938) Mad. 
1019, (’38) A.M. 843. 



JOINT FAMILY BUSINESS. 


269 


the members of a joint family of which the manager is a partner 
with a stranger, the manager is bound to realize his share 
of the partnership assets for the benefit of the family, and for 
distribution among the members thereof (e). But this, it is 
conceived, he cannot do until the term of the partnership 
has expired. 

{4) Presumption as to business carried on by a member . — 
There is no presumption that a business carried on by a member 
of a joint family, is joint family business (/). Nor is there any 
presumption that a business carried on by such a member in 
partnership with a stranger is joint family business (y). There 
is no presumption that a business started by even a manager 
is joint family business, but if the joint family funds are 
utilised in opening a new branch then the new branch will 
be regarded as part of the old business (h). 

See 8. 240 below and notes thereto. 

Minor's share. — The reason why even a minor's share is liable for payment of debts 
contracted by a manager in the course of the family business is that, if it were otherwiss 
property in a family firm which is recognized by the Hindu law to be a valuable inheritance 
would become practically valueless to the famOy wherever a minor was concerned, 
for no one would deal with a manager if the minor were to be at liberty on coming of age 
to challenge the trade transactions which took place during his minority (t). 

New business. — The first proposition in sub-sec. (2) is based on the decision of the 
Privy Council in Sanyasi Charan Mandal v. Krishnadhan Banerji {j). That was a 
Bayabhaga case. In that case the joint family consisted of brothers and the new business 
was started by the adult brothers. In the course of the judgment, their Lordships said : 
“ The distinction between an ancestral business and one started like the present after 
the death of the ancestor as a source of partnership relations is patent. In the one case 
these relations result by operation of law from a succession on the death of an ancestor 
to an established business, with its benefits and obligations. In the other they rest 
ultimately on contractual arrangement between the parties.” The decision proceeds on 
the ground that a minor could not become a partner by contract [Indian Contract Act, 
1872, 8. 11], though he might be “admitted to the benefits of the partnership” 
[Indian Partnership Act, 1932, s. 30]; and since a new business could rest only on 
contractual arrangement, a minor could not be a partner in such business. 

Whether a business is a new business is in each case a question of fact. The fact 
that it had ceased to be carried on for a few years in the grandfather’s lifetime does not 
make it a new business if it is started by the father again {k). Where a joint family 

(«) 41 Mad. 454, 43 I.C. 9, ('18) A.M. 37, supra. 

(f) Vadilal v. Shah Khushal (1003) 27 Bom. 157. 

See also Saroon Mahomed, in the matter of 
(1890) 14 Bom. 189. See Qrey v. Walker 
(1913) 40 Cal. 523, 18 I.C. 753 ; GoUrai 
Chand V. Bukum Chand — yath Mai. 

(1921) 48 I.A. 162, 171, 2 Lah. 40, 49, 60 
I.C. 379, ('21) A.PC. 35. 

(g) Mirza Mai v. Rameshwar (1929) 51 All. 

827, 118 I.C. 146, (*29) A.A. 636. 


(A) Ramnath v. Chiranji Lai (1935) 57 AH. 605, 
155 I.C. 136, (’35) A.A. 221. 

(i) Ramlal v. Lakhmichand (1861) 1 Bora. H.C. 
App.ll, Ixxll, Ixxili. 

(}) (1022) 49 I.A. 108, 114-115, 49 Cal, 560, 
667-668, 67 I.C. 124, (’22) A.PC. 237. 

(k) Damodaram v. Bansilal (1928) 51 Mad. 711, 
111 I.C. 297. ('28^ A.M. 566 


S.234 



270 


HINDU LAW. 


Ss. 

234,235 


canieB on business in partnership with a stranger in a particular name, and the stranger 
retires, and on his retirement the family carries on the same business in another name, 
it does not make it a new business (/). 

Separate property when liable. — A debt is contracted by the manager in the 
family business. The other members are not parties to the transaction, nor is the contract 
ratified by them. In such a case the other members, whether they be adults or 
minors, are liable onl}' to the extent of their interest in the joint family property ; their 
separate property is not liable. The reason is that the power of a manager to bind the 
other members of the family is restricted to, and does not extend beyond the joint property. 
The legal individuality of a coparcener is not merged in the manager as regards the 
coparcener’s separate property (m). 

Debts contracted by a widow. — As to trade debts contracted by a widow carrying on 
business left by husband, see s. 194A and s. 195. 

III.— MANAGEMENT AND ENJOYMENT OF COPARCENARY 
PROPERTY. 

235. Rights of coparceners.— (■?) Community of Interest 
<ind unity of possession. — No coparcener is entitled to any 
special interest in the coparcenary property, nor is he entitled 
to exclusive possession of any part of the property (n). As 
observed by their Lordships of the Privy Council, “ there is 
community of interest and unity of possession between all the 
members of the family ” (o). 


(2) Share of income. — member of a joint Mitakshara 
family cannot predicate at any given moment what his share 
in the joint family property is. His share becomes defined 
only when a partition takes place [p). As no member, while 
fhe family continues joint, is entitled to any definite share of 
the joint property, it follows that no member is entitled to any 
definite share of the income of the property (g). The whole 
income of the joint family property must be brought, accord- 
ing to the theory of an undivided family, to the common 
chest or purse, and there dealt with according to the modes 
of enjoyment by the members of an undivided family (r). 

(2a) It is competent to the manager to allot to any 
individual member a portion of the family property to enable 
him to maintain himself out of its income. Any savings out 
of the income and investments of such savings •will be the 
separate property of the member (s). 


(/) Horn Krishna v. Hafan Chand (1931) 58 I,A. 
173, 53 All. 190, 182 I.C. 613, (’31) A.PC. 
136. 

(m) Chalatnayya v. Varadayya (1899)22 Mad, 

166, 168. 

(n) Naranbhai v. Eanchod (1902) 26 Bom. 141, 

144. 

(o) Katama Natchxar v. Rajah of Skitayunga 

(1863) 9 M.I.A. 539, 543, 615. 


(p) Appovier v. Rama Suba Aiyan (1860) 11 
M.I.A. 75, 89. 

(?) Qanpat v. Annaji (1899) 23 Bom. 144. 

(r) (1806) 11 M.l A. 75, 89, $upra. 

(*) Bengal Insurance and Property Co. Ltd. 
V. Velayammal (1937) Mad. 990, (*37) 
A.M. 571, 170 I.C. 270; Ramayya 

Goundan v. Kolanda Gowxdan & Ors. 
(1940) Mad. 322, (’39) A.M. 11, (1989) 
2M.L.J. 639. ’ ^ ^ > 



EIGHTS OF COPARCENEES. 


271 


(3) Joint possession and enjoyment. — Each coparcener is 
entitled to joint possession and enjojTnent of the family 
property. If any coparcener is excluded from joint possession 
or enjoyment, he is entitled to enforce his right by a suit. He 
is not bound to sue for partition. There is no reason why a 
Hindu coparcener, who is excluded from the enjoyment of his 
joint rights, should be compelled at the instance of the other 
coparceners and against his will to break up the joint family 
by bringing a suit for partition {t). Where a coparcener is 
excluded from joint possession, the proper decree to pass 
is to declare his right to joint possession, a,nd, further, to direct 
that he be put into joint possession. A mere declaratory 
decree is of no use (u). 

(3a) Exclusion from, joint family property . — Where a 
coparcener is excluded by other coparceners from the use or 
enjoyment of the joint property or any portion thereof, and 
the act of the defendants amounts to an ouster of the plaintiff 
from his enjoyment of the property, the Court may by an 
injunction restrain the defendants from obstructing the plaintiff 
in the enjoyment of the property (v). 

Art. 127 of the Indian Limitation Act, 1908, provides a 
period of twelve years for a suit by a person excluded from 
joint family property to enforce a right to share therein from 
the date when the exclusion becomes known to the plaintiff. 
The fact that a coparcener voluntarily resides separately from 
the family and does not ask to be maintained by the family, 
does not amount to an exclusion from the joint family 
property (w). Nor does a refusal to partition, where there is no 
denial of the right to a partition (a;). 

Illustrations. 

(a) A and B are members of a joint family. A prevents B from using a door or 
a staircase, which is the only means of access to the rooms in B'b occupation. A’e act 
amounts to ouster. He may, therefore, be restrained by an injunction from disturbing 
B in the use of the door or staircase : Anant v. Oopal (1895) 19 Bom. 299 ; Soshi v. 
Ganesh (1902) 29 Cal. 500. 

(b) A and B are members of a joint family which owns a shop in Poona. A prevents 
B from entering the shop, inspecting the account books, and taking part in the manage- 
ment of the shop. A may be restrained by an injunction from excluding B from the 
joint possession and management of the shop : Ganpat v. Annaji (1899) 23 Bom. 144. 


(t) (1902) 26 Bom. 141, supra ; Itamcfiandja 

V. Damodar (1896) 20 Bom. 467. 

(u) (1902) 20 Bom. 141, 145, supra. 

(tj) Anant v. Gopal (1895) 19 Bom. 209 ; Soshi 
V. Oanesh (1902) 29 Cal. 500, (1899) 23 


Bom. 144, supra. 

(to) Sitalprasady. Ham Prasad (1944) Nag, 17. 
(j:) Radhoba v Aburao (1929) 56 I. A 316, 53 
Bom. 000, 118 I.C, 1, (’29) A.PC. 231. 


S.235 




272 


HINDU LAW. 


S.23S 


{4) Every coparcener in an undivided family is entitled 
to be maintained out of the family estate. See further s. 543. 

(5) Unauthorized acts — A contract of suretyship entered 
into by a coparcener other than the manager is void and 
; cannot be ratified (y). A coparcener has no right, with- 
out the consent of the other coparceners, to erect a building on 
land belonging to the joint family or on any portion thereof, so 
as to alter materially the condition of the property or to do 
anything with the property which would interfere with the 
joint enjoyment thereof. If he does so, he may be restrained 
by an injunction ( 2 ). But the remedy by way of injunction 
is not appropriate, if the act done is of such a character that 
the condition of the property is not materially altered thereby 
as where a wall is erected which does not interfere with the 
joint enjoyment of the property (a). See notfes to sec. 227. 

(6) Right to enforce 'partition . — Subject to the provisions 
of section 307, every adult coparcener is entitled to enforce a 
partition of the coparcenary property. 

{7) Alienation of undivided interest . — No coparcener can 
dispose of his undivided interest in coparcenary property 
by gift [s. 258]. Nor can he alienate such interest even for 
value except in Bombay and Madras [secs. 259, 260]. 

(8) Right of survivorship . — ^Where a coparcener dies before 
partition of the coparcenary property, his undivided interest in 
the property devolves, not by succession upon his heirs, but by 
survivorship upon the surviving coparceners (6) [s. 229]. 

(9) Manager . — A coparcener who is a manager has 
certain special powers of disposition over the coparcenary 
property which no other coparcener has [ss. 237-251]. 

(10) Father . — A father has certain special powers of dis- 
posing of coparcenary property which no other coparcener has 
[sec. 256]. 

Partition and survivorship . — The right to enforce a partition and the right to take 
by survivorship go hand in hand. In fact, as observed by the Privy Council, “ it is 
the right to partition which determines the right to take by survivorship ” (c). 


(u) Malakchand v. Ilira i/a2 (1930) 11 Luck. 449, 
157 l.C. 945, (’35) A.O. 510. 

( 2 ) Skeopersad v. J/cela Sinyh (1874) 12 Beng. 
L. E. 188 ; Qutu Das v. Bijaya (1808) 
1 Beng. L.E.A.C. 108 ; Vithoba v. Hanba 
(1869) 6 Bom. H. C. A. 54. See also 
Shadi V. Anup Singh (1890) 12 All 
436; Najju Khan v. /meta2-«d-din(1896) 


18 All. 115. 

(o) Bisusambhar y . Jf?ojara»i(1860) 3 Beng. L. R. 
Ap. 67. 

(6) Katftma Natckxar v. Rajah of Shitaaunga 
(18(16) 9 M.I.A. 543, 616 . 

(c) Vtnkayyamma v. V enkataramanayamma 

(1002) 26 Mad. 678, 687. 



MANAGER. 


273 


Injuvciion . — In disputes between members of a joint Hindu family relating to joint 
property, the exercise of the Court’s jurisdiction to grant relief by injunction should be 
confined to acts of waste, illegitimate use of the joint property and acts amounting to 
ouster (d). 

Joint possession . — The members of a joint family may agree between themselves 
without coming to a partition, to occupy for their convenience separate portions of the 
joint property. In fact, this is the general practice. It amounts to exclusive possession 
of the separate portion enjoyed by each member by the consent of all ; it may be 
terminated and a completely new arrangement may be made, at any time, by the members 
of the family, if they think fit to do so (e). 

236. Manager.— Property belonging to a joint family 
is ordinarily managed by the father or other senior member 
for the time being of the family. The manager of a joint 
family is called ^rta. 

The father is in all cases naturally, and in the case of minor 
sons necessarily, the manager of the joint family property (/). 


“ The joint and undivided family is the normal condition of Hindu society. An 
undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. 

I Therefore, not only the concerns of the joint property, but whatever relates to the 
commensality and their religious duties and observances, must be regulated by its 
members or by the manager to whom they have expressly or by implication delegated 
the task of regulation ” {g). 


“ So long as the members of a family remain undivided, the senior member of the 
family is entitled to manage the family properties,” including even charitable properties 
{h) ; and is presumed to be the manager until the contrary is shown (»). But the 
senior member may give up his right of management, and a junior member may be 
appointed manager (j). 


Though a son acquires by birth an interest equal to that of the father in ancestral 
property, yet the father by reason of his paternal relation and his position as the head of 
the family and its manager, is entitled to make lawful disposition of the family property 
in the interest of the family. Therefore, a son has no right against the will of his father 
to occupy any specific portion of the family property and if he does so the father may sue 
to eject him from it (k). If the son does not approve of the management of the family 
property by the father, his remedy is to ask for a part.ition of the property against the 
father. 

''it is not to be supposed that a member of a joint family who is a manager has a 
larger proprietary interest or has larger rights to enjoy the joint property than any other 
member. The only respect in which he has a superior right is that he has a power of 
disposition for causes recognised as just and proper under Hindu law of the whole familv 
property, including the interest of the junior members (i) [sec. 242]. 


(d) Anant v. Oopal (1895) 19 Bom. 269. 

(e) Sheopertiad v. Leela Singh (1874) 12 Beng. 

L. B. 188, 195. 

(/) Suraj Bunsi Koer v. Sheo Pefsad (1880) 
5 Cal. U8, 166. 6 I. A. 88. 

(p) Sn Baghunadha v. Sri Brozo Ktahore (1876) 
1 Mad. 60, 81, 3 I. A. 154, 191. 

(A) Thandavaroya v. 5Aunm'i9am(1909) 32 Mad. 
167, 169, 2 I.C. 34. 


j (i) Varada BhaktavaUalu ct Ors v. Damo^i- 
purapu Venkata Nanivtha Boo (1940) 
Mad. 762, 191 I.C. 369, (’40) A.M. 530. 

(j) Mudit V. Ranglal (1902) 29 Cal. 797. 

(*) Baldeo Da^ v. Sham Lai (1876) 1 All, 77. 
(/) .yunna v. Chidaraboyina (1903) 26 Mad. 214. 


Ss. 

235,236 



274 


HINDU LAW. 


237. Manager’s power over income. — ^The manager, as the 
head of the family, has control over the income and expen- 
diture, and he is the custodian of the surplus, if any. So 
long as he spends the income for the purposes of the family, 
he is not under the same obligation to economise or save 
as a paid agent or trustee would be. If he spends more than 
the other members approve, their remedy is to demand a 
partition (m). On the other hand, he is liable to make good 
to them their shares of all su m s which he has misappropriated 
or which he has spent for purposes other than those in which the 
. joint family was interested («). 

The family purposes referred to above are the maintenance, 
education, marriage, sraddh and other religious ceremonies 
of the coparceners and of the members of their respective 
families. In taking accounts at the time of partition, no 
charge is to be made against any coparcener, because in conse- 
quence of his having a larger family to maintain than others, 
a larger share of the joint income was spent on his family. Such 
expenditure is considered to be the legitimate expenditure 
of the whole family (o). 

Manager not an Agent , — A manager is not an agent within the meaning of Chapter X 
of the Indian Contract Act, 1872 (p), or of cl. 12 of the Letters Patent (j). His position 
is more like that of a trustee (q). But it is not precisely the same as that of a trustee, for 
if it were so, he would be bound to economise ,and_ save, aB_a trustee is, whkh, it has 
been held, he is not (r). 


238. Manager's liability to account on partition. — (i) In the 
absence of proof of misappropriation or fraudulent and improper 
conversion by the manager of a joint family estate^he is liable 
to accoimt on partition only for assets which he has received, 
not for what he ought or might have received if the family 
money had been profitably dealt with (,s). Further, in the 
absence of any such proof, a coparcener seeking partition is 
not entitled to require the manager to account for his past 
dealings with the family property (i). All that he is entitled 


(m) Bhommx v. Jaggemath (1909) 13 C. W. N. 
309, 3 I.C. 241 ; Tarachand v, Reeb Ram 
(1860) 3 Mad. H. C. 177. 

In) Abhayenandra v. Pyari Mohan (1870) 6 
Beng. h. a. 347, 349. » 

(o) (1870) 5 Beng. B. E. 347, 849, mpra. 

in) Muhammad v. Radhe Ram (1900) 22 AU. 
307, 317 ; Sri Kant Lai v. Siddheahujari 
Pratad (1937) 16 Pat. 441, 170 I.C. 367. 
('87) A.P. 455. 


( 7 ) 

(O 

(») 

(0 


Annamalai v. Murugata (1903) 26 Mad. 544, 
563, 30 I.A. 22P, 228. 

Penazu v. Subbarayadu (1921) 48 I.A. 280, 
287-288, 44 Mad. 656, 863, 61 I.C. 690, 
(•22)A.PC. 71. 

(1921) 48 I.A. 280, 287-288, 44 Mad. 856, 
663, 61 I.C. 690, (’22) A.PC. 71, supra ; 
Laxmmarayan v. Dmker (1943) Nag. 
390, 205 I.C. 279, (’43) A.N. 181. 

Sukhdeo V. Bos Deo (1935) 67 All. 049, 167 
I.C. 1013, (’35) A.A. 694. 



MANAGER. 


276 


to is an account of the family property as it exists at the time he 
demands a partition (m). But it is open to him to show that ^ 
the expenditure which the manager alleges he has incurred 
has not in fact been incurred, or that more properties are 
available for partition than those disclosed by him {v). 

See sec. 305 below. 

(2) Since the institution of a suit for partition amounts 
to a severance of joint status, the manager is, from and after 
the date of such a suit, strictly bound to account for all 
receipts and expenses, and can take credit only for such 
expenses as have been incurred for the benefit or necessity of 
the estate, and the net income after deducting such expenses is to 
be divided among the coparceners according to their shares {w). 

Form of decree . — As to the form of the decree, see the undermentioned ease (a). 

/ 

Minor coparceners and accounts. — The principle underlying the rule stated in this 
section is that if the other members of the family who are adults are dissatisfied with 
the management of the joint family property by the manager, they may sue for partition 
otherwise they will be deemed to have acquiesced in the management however grossly 
negligent it may be, except, of course in case of fraud or misappropriation. A distinction, 
however, has been drawn in some cases between the rights of those members who were 
adults and those who were minors during the management, and it has been held that since 
minors could not be deemed to have consented to the management, they are entitled 
when they attain majority, to hold the manager liable not only for acts amounting to 
fraud, but also where the management has been grossly negligent and prejudicial to their 
interest, the presumption, however, being that in the absence of evidence the property 
available for partition is such as exists at the date of the suit for partition (y). This 
distinction, it is submitted, cannot be sustained on principle. The liability to account 
must be the same whether the other coparceners were minors or adults during the 
management (z). 

Special Agreement. — By a special agreement between the coparceners, the manager 
may be rendered liable to account on the footing of an ordinary agent (a). 


239. Manager’s liability to account otherwise than in a par- 
tition suit. — It has been held in Bengal that any coparcener 
may, without bringing a suit for partition, require the manager 
to account for his dealings with the coparcenary property and 


(u) Parmishioar v. Croi'uid (1916) 43 Cal. 459, 

33 I.C. 190, (’16) A C. 500 ; Balakrishna 
V. Muthusami (1900) 32 Mad. 271, 3 I.C. 
878 ; Narayana v. Natbaji (1904) 28 Bom. 
201, 203 , Damodardas \ . UltamramilSOS) 
17 Bom. 271 ; Jugmohundas v. ^Xan^Jal<U^s 
(1886) 10 Bom. 528, 500-562, 581 ; 
Konnerrav v. Gurrav (1881) 5 Bom. 589, 
595; Ramnatk v. Goturam(,V-i20) 44 Bom. 
179-1S3, 54 I.C. 115, (’20) A.B, 236 ; 
Jyolibali V. L'lJc^hmy^hwir (1929) 8 Tat. 
818, 120 I.C. 770, (’30) A.P, 1. 

(v) Tammireddi v. Qangir&ddi (1922) 45 Mad. 

281, 70 I.C. 337, (’22) A.M. 236 ; (1916, 


43 Cal. 459, 33 I.C. 100, (’16) A.C. 500), 
supra, 

(w) B«n?a v. 5rinirasa (1927) 50 Mad. 865, 
873-874, 104 I. C. 472, (’27.) A.M. 801. 

(.*) (1886) 10 Bom. 628, at pp. 562, .581, supra, 
{y) Domodardas v. UUamram (1893) 17 Bom. 
271, 278-279 ; Cbukun v. Poran (1868) 9 
W. Jl. 483. 

(?) See .SH Kanjt* v. Srinivasa (1927) 60 Mad. 
866, 873-874. 104 I.C. 472, (’27) A. M, 
801. 

W) iSrtruefleWtt v. Raja Setracberla (1899) 

22 Mad, 473, 26 I,A. 167. 



276 


HINDU LAW. 


Ss. 

239,240 


the income thereof. If the manager refuses to render the 
account he may be compelled by suit to render such account (b). 

“Suppose, for instance, that one of the members of a joint family, with a view to 
separate from the others, asks the manager what portion of the family income has been 
actually saved by him during the period of his managership. If the manager chooses 
to say that nothing has been saved, but at the same time refuses to give any account of 
the receipts and disbursements which were entirely under his control, how is the member, 
who is desirous of separation, to know what funds are actually available for 
partition ? " (c) In the ease cited above, it was contended that a coparcener was not 
entitled to an account from the manager, unless he also sued for partition, but it was 
held that a coparcener is entitled to sue for an account in order to acquaint himself with 
the real state of the family affairs without also suing for partition. 

240. Power of manager to contract debts for family purposes 
and family business. — (2) Implied authority to borrow money for 
family business [Vide s. 234, (2) (iii) (iv) (v)', and s. 270 below]. 

(2) Implied authority to borroiv money for family purposes. 
— A joint Hindu family may have no business at all, and yet 
debts may be contracted by tbe manager for a joint family 
purpose [s. 243]. Suck debts also are binding on tbe other 
coparceners to the extent mentioned in the sections referred to 

dn sub-sec. (2) (d). The liability of a coparcener in such a case 
jdoes not cease by subsequent partition (e). When a sole 
surviving coparcener incurs a debt, he must be deemed to have 
done so in a representative capacity, that is to say, as represent- 
ing a potential joint family, which is capable by expansion of 
comprising more than one member (/). 

(3) Burden of proof of necessity for a loan for a family 
purpose or for family business . — Where money has been 
borrowed by the manager on the representation that it is 
required for a family purpose [g), or for family business [h) and 


(ff) SoiTit Padmanabh v. Narayanrao (1894) 
18 Bom. 520 ; Kri-^hna v, Vasudeo (1807) 
21 Bom. 808, 810; Sunkur v. Qowry 
Pershad (1880) 5 Cal. 321 ; Mala Mai v 
Gnri (1922) 3 Lah. 288, 60 I.C. 485, 
(’22) A.L. 200; Khazana Mai v. Jagan 
flaih (1923) 4 Lah. 200, 74 I. C. 484, 
(*24) A. L. 41 ; Sotam Bam v. Par- 
duman Bam (1927) 8 Lah. 073, 105 I. C. 
785, (’28) A.L. 103. 

(A) Ram KrUhna v, Batanehand (1931) 58 
I. A. 173, 53 AH. 190, 132 I.C. 613, (*31) 
A. PC. 136 ; following Hunooman Persaud 
V. Musammad Bahooee (1856) 6 M. I 
A. 393; Nagendra v. A.var Chan- 
dra (1903) 7 C.W.N. 725 ; Oanpat Bai 
V. Munni Lai (1912) 34 All. 135, 13 I.C 
34, (1923) 4 Lah. 200, 74 I. C. 484, (’24) 
A. L. 44, supra ; Girdhari Lai v. Kishen. 
Chond (1924) 5 Lah, 511, 85 I. C. 463, 
(*25) A. L. 240 ; Vithal v. Shwappa (1923) 
47 Bom. 637, 72 I. C. 659, (’23) A.B. 265, 
dlsacntlng from Raghunathji v. Bank oi 
Bombayj (1910) 34 Bom. 72, 2 I.C. 173. 


(&) Ahhaychandray . Pyari Mohun (1870) 5 Bcng. 

L. K. 347 (a MitakBhara case] ; Benoy 
HrwAna Gosh CAaudri v. Amareixdra 
Krishna Gosh Choudri (1940) 1 Cal. 183, 
186 r.C. 546, (’40) A.C. 51 (a Dayabhaya 
case]. 

(c) (1870) 5 Beng. L. R, 347, 350, supra {a 

MUaltshara case). See alao (1857) 6 

M. I.A. 526, 539-540, supra [a Dayabhaga 
case], 

(d) Gharib-ullah v. Khalak Singh (1903) 25 All. 

407, 414-415, 30 I.A. 185 , Dwarka yaih 
V. Bungshi (1905) 9 C. W. N. 879 [a 
cage under the Dayabhaca law| ; Chala- 
mayya v. Varadayya (1899) 22 Mad, 160. 

(e) Bankey Lai v. Prasad (1031) 53 All. 

868 (F.B.], 135 I.U. 139, (’31) A.A. 512. 

(f) Ramanathan Cheltiarv. S.R.M. Ct. M Firm 

(1937) Mad. 370, 108 I.C. 731, (’37) A.M. 
345. See also Maharaja of Bobbili y. 
Zamindar of Chundi (1012) 35 103. 

Both are cases of adoption. 



MANAGER. 


277 


tke lender seeks to render the whole family property including S. 240 
the shares of other members of the family liable for the debt, 
he is not entitled to a decree against the whole family property, 
unless he shows that there was a necessity for the loan, or that 
he made reasonable inquiry as to the necessity for the 
loan {%) the mere existence of the business not being enough 
or that it is for the benefit of the family {j). 

(4) Promissory note passed by manager for family business 
in Ms own name . — It has been held in several cases that 
where the manager of a joint family borrows money on a 
promissory note for a joint family business or to meet a joint 
family necessity, the other members of the joint family may 
be sued on the note, though they are not parties to the note, 
but their liability is limited to their share in the joint 
family property (fc), unless they can be treated as contracting 
parties (i). If the suit is filed before partition, the creditor 
may sue the manager only and seek' for a declaration that 
the whole joint family property is liable or he may implead 
the other members also. After partition, he must implead ; 
the other members in order to enable him to proceed against 
the portions allotted to them (w). Where the suit is by the ! 
endorsee of the note his remedy is against the maker only 
unless the endorsement is so worded 'as"'fd 'transfer the debt 
also and complies with the stamp law [n). In such cases 
there is no presumption that the borrowing was for the 
purposes of the joint family business and the lender must 
prove it (o). In Bombay it has been held that the proper 
course in such a case is to sue the manager on the note and 
the other members on the pre-existing debt, the defences open 
to the parties being distinct {p). 

A decree passed against the manager of a joint family 
(who is not the father) on a promissory no te executed by him, 

({) Afussammat Afatili v. Brij Lai & On. \ 17 Lah. Sll, ('SS) AX. 7S5. 

(1942) Lah. 345, 205 I.C. 37, (’43) A.L. (m) Pangudaya v. Utfiandiva (1938) Mad. 968 
33(F,B.). I 177J.C. 188, (’38) A. M. 774. 

(j) Ram Nath v. Chiranji Litl (1935) 57 AU, 

605 (F.B.1,. 135 I.C. 136, (’35) A. A. 221 ; 

Mut^addilal V. Sakhir Chand (1936) 17 
Lah. 311, (’85) A.L. 785. 

(fc) .ffwftna V. KTist{na«ami (1900) 23 5Iad. 

597 ; Bai*nab v, Ramdhan (1906) 11 C. 

W. N. 139 ; Krishnanand v. Raja Ram 
Singh (1922) 34 All. 393, 66 I. C. 150, (’22) 

A. A. 116 ; Ragunath v. Sri Narain (1923) 

45 AH. 434, 73 I. C. 1018, (’23) A. A. 424. 

(1) Srikant Lai v. Sidh^shioari Prasad (1937) 

16 Pafc. 441, 170 I.C. 357, (*37) A.F. 

456 ; Mutsaddi Lai v. Sakir Chand (1936) 


fn) Marudcmuthu v. Kadir Basha (1988) Mad. 
568, (’38) A.M. 377 ; Aamana^Aan Chethar 
V, ifuthuraman Naidu A Ots. (1942) 
Mad. 204, 210 I.C. 8, (*42) A.M, 161 
(1042) 2 M.L.J. 816. 

(o) Ahdvl ^^ajid Khan v. Saras wathibai ( 1 934) 6 1 
I.A. 90, 36 Bom. L.Il. 225, 147 I.C. 1 
(’34) A.PC. 4. 

ip) Vithalrao v. VHhalrao (1923) 25 Bom. I. R 
151, 72 I.C. 242, (’23) A.B. 244. Tho point 
was not raised In v. Hori 



278 


HINDU LAW. 


S. 240 in his personal capacity, containing no direction that it shall 
be granted out of family property cannot be executed 
against the family property {q). 

It has been held that where a decree has been obtained 
on such a note against the manager and a minor coparcener, 
it cannot be executed against the minor personally, his liability 
in law being confined only to his share in the joint family 
property, and that he cannot be arrested under such a decree 
either before or after he has attained majority (r). 

{5) Neiv bitsiness . — As to the power of a manager to start 
a new business, see sec. 234 (2). 


Illustration. 

Three brothers .4, B and C, managing members of a joint Hindu family, borrow 
money from D for purposes of the joint family business, and execute a promissory note 
in favour of D. After the death of B and C, B sues -4 and the sons of Ay B and C on the 
note. D is entitled to a decree enabling him to recover the money from the joint faynily 
property. He is also entitled to a personal decree against ,4, A being a contracting party, 
so as to enable him to proceed against the separate property of A. But ho is not entitled 
to a personal decree against the sons of .*4, B or C for they are not parties to the note. 
According to the Bombay case referred to in the section, the suit should be against A 
on the noiet and against the sons of Ay B and C for the debt. 

As to ancestral business and its incidents, see secs. 234 and 240. 

Contribution. — A manager has power to borrow money for a joint family purpose 
on the security of the family property. But he may also borrow on his personal security. 
When he borrows money on his personal security, but for a family purpose, and apjends 
it for the benefit of the family, he is entitled to contribution from other members. The 
right to contribution arises when he expends the money, and no^n the date on which he 
repays the loan. Therefore limitation runs against his claim from the former, and not 
from the latter date ( 5 ). 1 

Extent of liability of other members. — ft is an elementary proposition of law that 
not bound to pay a debt contracted by B, unless B has been authorised by A to incur 
the debt. In the case of a manager of a joint Hindu family, the manager has an impli^ 
authority to bind the other members by debts contracted by him, provided that in the 
case of a family business, the debts have been contracted by him for the ordinary purposes 
of the business, and, in other cases, the debts have been contracted for a family purpose. 
The authority of the manager, however, extends only to the family property ; that is to 
say, if the manager borrows money within the scope of his authority, and the loan is not 
repaid, the creditor can proceed only against the family property including the shares 
of the other members in the property, but the other members are not bound personally 
so as to entitle the creditor to proceed against their separate property. The creditor 
can, of course, proceed against the separate propeiiy of the managery for the manager 
is a party to the contract. Likewise he can proceed against the separate property 


{q) Chippagiri Nagireddi v. Veiikachari Somappa 
(1943) Mad. 248, 204 I.C. 198, ('43)A.M. 1, 
(1942) 2 M.L J. 691. 

(r) Bishen Singh v, Kidar Naih (1021) 2 Lah. 
159. 62 I.C. 800, ('21) A.L. 01 ; Jtcala 


Prasad v. Bhudu Ram (1031) 10 Pat. 503, 
134 I.C. 420, (’31) A.P. 828. 

(«) Aghore l^alh v. Grish Chunder (1893) 20 
Cal, 18. 



MANAGER. 


279 


of any other member if he is a party to the contract, or if he subsequently ratifies 
the contract. 


241. General powers of manager of joint family business-— 
Besides the power to contract debts for the family business 
[s. 240], the manager has the power of making contracts, 
giving receipts, and compromising (s. 248) or discharging claims 
ordinarily incidental to the business. Without a general power 
of that kind, it would be impossible for the business to be 
carried on at all {t). 

It was so laid down by the Judicial Committee in a case in which the business was a 
money-lending business. The principal question in that case was whether the managing 
members who had entered into ordinary business contracts in their own names on behalf 
of the family were entitled to sue in their own names, or whether the other members 
were necessarj’ parties. It was held that they could sue in their own names (a). The 
refusal by the manager of a joint family to purchase properties sought to be pre-empted 
binds the coparceners (o'/! 

When a father and manager of a joint family filed a petition under see. 20 of Madras 
Act IV of 1938 but failed to file an application within 60 days under sec. 19 of the Act his 
minor son cannot apply for the same relief as the whole joint family is bound by the father's 
default (io). 

242. Alienation by manager of coparcenary property for 
legal necessity. — (i) Tbe power of the manager of a joint 
Hindu family to alienate joint family property is analogous to 
that of a manager for an infant heir ^s defined by thejudicial 
Committee in Hunoomdn Persaud v. Musamniat Babooee ' 
(1856) 6 Moo. I. A. 393 [see note (1) below]. 

(2) The manager of a joint Hindu family has power to 
alienate for value joint family property, so as to bind the 
interests of both adult and minor coparceners in the property, 
provided that the alienation is made for legal necessity (x) 
[s. 243], or for the benefit of the estate [s. 243A]. A manager 
(not being the father) can alienate even the share of a minor 
coparcener to satisfy an antecedent debt of the minor’s father 
(or grand father) when there is no other reasonable course open 
to him {y). It is not necessary to validate the alienation that the 


(t) KishenPanhadv. Bar .Warow (1911) 

33 All. 272, 38 I.C. 45, 9 I. C. 739. 

(u) (1911) 33 All. 272, 38 I.A. 45, 9 I.C. 739, 

Bupra. 

(v) Kanshi Ram v. Lafiori Ram (1939) liSb. 246. 

(w) Qajagopi Reddi v. PuUa Rami Reddi (1939) 

Mad. 580. 

(x) Daulat Ram v. Mehr Chand (1887) 14 

I.A. 187, 196, 15 Cal. 70 ■, Sham Sunderv. 
Achkan Kunwar (1898) 25 I.A. 183, 192, 
21 AH. 71, 83 ; Qharibullah v. Khalak Singh 


(1903) 25 All. 407, 416-416, 30 I.A. 165- 
169; Biswanalh' \ . Jagdip (1913) 40 Cal. 
342, 17 I. C. 677 ; Bitnoowart Persaud v. 
MuBBumat Bobooee (1856) 6 M.I. A. 803 ; 
Soorendro v. (1874) 21 \V. R. 196 ; 

Sadhu Saran v. Brahmieo (1921) 6 Pat. 
L. J. 256, 61 I. C. 20, (21) A. P. 99 
[taking a lease of property for the family], 
(j^) Dharmarajsxngh v. ChandraaekhaT Rao 
(1942) Nag. 214, 200 I.C. 695, (’42) 
A.N. 66 (P.B.). 


Ss. 

24(h2C 



280 


HINDU LAW. 


S.242 


express consent of the adult members should have been 
obtained ( 2 ). See sec. 528 and notes. 

In Suraj Bunsi Koer v. Sheo Proshad (a), the Judicial Committee stated that it 
was not clearly settled whether where an alienation is made by a manager for a legal 
necessity, but w'ithout the express consent of the adult coparceners, the alienation is 
binding on them. But m later decisions of the same tribunal, the view taken is that if 
legal necessity is established, the express consent of the adult coparceners is not 
necessary [b). 

As to alienation by manager for joint family business, see sec. 246 below. 

{2a) Where a joint family consists of adults and minors, 
the mere fact that all the adult members including the manager 
have consented to the alienation is not proof of legal necessity. 
Such consent, however, may supply any lacuna that may 
exist in the evidence of legal necessity (c). 

{3) When an alienation is made by the manager without 
legal necessity, but with the consent of all other coparceners, 
they being all adults, the alienation is valid in its entirety {d) . 
If it is made without the consent of all, it would, in Bombaj’- 
and Madras, bind the shares of the consenting members. In 
Bengal and the United Provinces, where a coparcener cannot 
alienate even his own interest without the consent of all other 
coparceners, the alienation would not bind the shares either of 
the alienor or of the consenting members [ss. 257, 258 and 
ss. 268, 269]. 

As to consent, see also the undermentioned cases (e). 

(4) An alienation by the manager of a joint family made 
without legal necessity is not vpid, but voidable at the option 
of the other coparceners. They may afiirm it or they may 
repudiate it (/), but a creditor cannot repudiate it, there 
being no suggestion that it was in fraud of creditors {g). 


(z) Saha Ramv. Bhup Singh (1917) 44 I. A. 126, 
130, 39 All. 437, 443, 39 I. C. 280, ('17) 
A.PC. 61, (1898; 25 I.A 183, 192, 21 All, 
71, 83, supra. But flee (1903) 30 T.A. 165, 
169, 25 -All. 407, 415, supra. As to Indian 
decIsioDfl, see Chhotiram v. Narayandas 
(1887) 11 Bom. 605 [consent presumed] ; 
MUUr V. Runganaih (1886) 12 Cal. 389, 
399 [express consent not necessary] ; Mudit 
V. Ranglal (1902) 29 Cal. 797 [express 
consent not necessary) ; Pmtab v. Shxam 
Lai (1920) 42 All. 264, 265, 55 1. C 37, 
(’20) A. A. 131 [express consent not neecs- 
sary); Karn^ C/wndv. flam Lubhaya 
7 Lah. 470, 96 I. C. 443, (’26) A.L. 468. 

(q) (1879) 6 1. A. 88, 101, 5 Cal. 148. 165. 

(6) Sahu Ram v. Bhup Sing (1917) 44 I. A. 
126, 130, 89 All. 487, 443, 39 I. C. 280, 
(’17) A, PC. 61 ; Sham Sunder v, Achan 


Kunioar (1898) 25 I.A. 183, 192, 21 All. 
71, 83, supra. 

(c) Salamat Khan v. Dhagicat (1930) 52 All. 499, 

131 I.C. 608, (’30) A. A. 379. 

(d) Kandasami v. Somaskanda (1912) 35 Mad. 

177, 5 I.C. 922. 

(«) Qangabai Vumanaji (1864) 2 Bora. H. C. 
SOI; Alitler v. Ru7iganath (1886) 12 Cal. 
389. 

(/) Siibba Goundan v. Krishnamachari (1922) 45 
Mad. 449, 08 I.C. 869, ('22) A.M. 112, dis- 
gentinK from Kondasami v. Somaskanda 
(1012) 35 Mad. 177, 5 1. C. 922; Jagesar 
V. Deo Dai (1023) 45 All. 654, 74 I.C. 931, 
(’24) A. A. 51 ; KasMnath v. Bapurao 
(1940) Nag. 573, 191 I. C. 241, (’40) A.N. 
805. 

{g) Imperial Bank of India v. Ml. Maya Devi 
(1935) 16 Lah. 714, (’35) A.L. 867. 



MANAGER. 


281 


1. Hunooman Persaud v. Mussammat Babooee (A).— The leading case on the 
subject of alienation for necessity is Hunooman Peraaud's case. In that case their 
Lordships of the Privy Council said : — 

“ The power of the manager for an infant heir to charge an estate not his own is 
under the Hindu law, a limited and qualified power.. It can only be exercised rightly 
in a case of need, ot for the benefit of the estate. But where, in the particular instance, the 
charge is one that a prudent owner would make, in order to benefit the estate, the bona 
fide lender is not affected by the precedent mismanagement of the estate. The actual 
pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the 
particular instance, is the thing to be regarded . . . Their Lordships think that the lender 
is bound to inquire into the necessities for the loan, and to satisfy himself as well as 
he can, with reference to the parties with whom he is dealing, that the manager is acting 
in the particular instance for the benefit of the estate. But they think that if he does 
so inquire, and acta honestly, the real existence of an alleged sufficient and reason- 
ably-credited necessity is not a condition precedent to the validity of his charge, and 
they do not think that, under the circumstances, he is bound to see to the application 
of the money. . . . The purposes for which a loan is wanted are often future, as 

respects the actual application, and a lender can rarely have, unless he enters on the 
management, the means of controlling and rightly directing the actual application- 
Their Lordships do not^think that a bona fide creditor should suffer when he has 
acted honestly and with due caution, but is himself deceived.” 

The question in Hunooman Persaud'a case was as to the extent of the power of a 
mother as manager of the estate of her minor sonto alienate the estate. The case 
related to a mortgage created by the mother, but the same principles apply to a sale (i). 
The principles laid down in that case have been held to apply to alienations — 

(a) by the manager of a joint family acting on behalf of minor members of the 
family (j), being the’ case dealt with in sec. 242 ; 

(b) by a Hindu widow and other limited heirs of property inherited by them 
from males [as. 178-179] : 

(c) by managers of religious endowments [s. 415] ; and 

(d) by managers of the estate of lunatics (i). 

2. Alienation " for the benefit of the estate.”— See sec. 243A. 

3. Legal necessity.— See sec. 243. 

4. Specific performance of contract of sale entered Into by manager.— 

Where a manager enters into a contract for the sale of immoveable property belonging to 
the joint family for a legal necessity, but subsequently refuses to complete the sale the 
Court may, in a suit for specific performance brought by the purchaser, decree specific 
performance of the contract, though some of the members of the joint family are minora (1). 

5. Lease. — The alienation may be one by way of permanent lease (m). 

See notes to secs. 243 and 244, 


(A) (1856) 6 M. I. A, 303, 423-424. 

(i) Krishna Das v. Nathu Ram (1927) 54 I. A. 

79, 84, 49 AM. 149, 100 I. C. 180, (’27) 
A. PC. 37. 

(j) Soorendro v, Nundun (1874) 21 W. R. 196 ; 

Baboo Kamsswar Pershad v. Run Bahadur 
(1881) 0 Cal. 843, 8 I.A. 8 ; Sahu Ram v. 
Bhiip Singh (1917) 44 I. A. 126, 130, 
39 All. 437, 443, 39 I. C. 280, ('17) A.PC, 
61. Seo also In re Datlatraya Oound JSal- 
dankar (1932) 56 Bora. 519, ('82) A. B. 
537. 

(k) Qoureenath v. Collector of Monghyr (1867) 


7 W. II. 5 ; Kanti Chunder v. BUheshwar 
(1808) 6 Cal. 585. 

(l) Hari Charan v. Kaula I2ai (1917) 2 Pat. 

L. J. 513, 40 I.C. 142, ('17) A.P. 478 
[F.B.J. As to the liability of a manager 
for daraages for breach of contract where 
there is no legal necessity, see Adxkesaian 
V. Curunatha (1917) 40 Mad 388, 39 1. C. 
358, (*18) A. M. 1315 fP. B ]. See aho 
Jamseigi v. Eashtnath (1902) 26 Bom. 32tl ; 
Dhapo V. Ram Chandra (1985) 57 All 375, 
154 I. C. 236, (’34) A. A. 1019. 

(m) Basden v. Muhammad (1929) 51 All 285, 

U6 l.V. 491, (’28) A. A. 617. 


S.242 



282 


HINDU LAW. 


Ss. 

243,243A 


243. What is legal necessity.— The following have been 
held to be family necessities within the meaning of sec. 242 : — 

(a) payment of Government revenue and of debts which 
are payable out of the family property (n) ; 

(b) maintenance of coparceners and of the members of 
their families (o) ; 

(c) marriage expenses of male coparceners (p), and of the 
daughters of coparceners {q) ; 

(d) performance of the necessary funeral or family 
ceremonies (r) ; 

(e) costs of necessary litigation in recovering or preserv- 
ing the estate (s) ; 

(f) costs of defending the head of the joint family {t), or 
any other member (u) against a serious criminal 
charge ; 

(g) payment or debts incm-red for family business or 
other necessary purpose. In the case of a manager 
other than a father, it is not enough to show merely 
that 'the debt is a pre-existing debt (u) [s. 246]. 

See s. 415, notes under the head “ Legal necessity.” 


243A. Alienation by manager for "the benefit of the 
estate.” — There is a conflict of opinion as to the meaning of 
the words “ for the benefit of the estate ” which occur in the 
judgment of the Judicial Committee in Hunooman Persaud^s 
case referred to in note 1 to sec. 242. One view is that a transac- 
tion cannot be said to be for the benefit of the estate, unless 
it is of a defensive character calculated to protect the estate 
from some threatened danger or destruction (see cases cited in 


(n) Oharib-ullah v. Khalak Singh (1903) 25 All. 

407, 414-415, 30 I. A. 165; Mudil v, 
RanglaimQ2) 29 Cal. 797. 

(o) See Makundi v. Sarabsukh (1684) 6 All. 

417-421. 

(p) Snndrabai v. Shivnarayana (1008) 32 Bom. 

81 ; Bhagirathi v. Jokhu (1910) 32 All. 
575, 6 I.C. 465 ; QopalakrUhnam v. Yen' 
Icatarrua (1914) 37 Mad. 273, 17 I. C, 
308, (’14) A.M. 432, overniiing Oovinda- 
razalu v. Devarabhoila (1904) 27 Mad. 
206 ; Kamtswara v. VeeracharUi (1016) 34 
Mad. 422, 6 I.C. 105. 

{q) Chhotiram v. Narayandas (1887) 11 Bom. 
605 ; Vaikuntam v. Kallapiram (1000) 23 
Mad. 512 (marriage of niece) ; Vaikuntam 
V. K(iUapiram{l^Q%) 26 Mad. 497 ; Ranga- 
naiki v. Ramanuja (1912) 35 Mad. 728, 11 
I.C. 570 ; Ramcharan v. Mihin Lai (1914) 
36 AU. 158, 22 I.C. 633, ('14) A.A. 23 ; 
Sellappa v. Suppan (1037) Mad. 906, 171 
I.O. 216, ('87) A.M. 406. 


(r) See Nathuram v. SJioma Chhagan (1890) 14 
Bom. 562 ; Lalla Qunpat v. Toorun (1871) 
16 W. B. 62. 

($) Miller v. Rungar^ath (1886) 12 Cal. 389. 

(<) Beni Ram v. Man Singh (1912) 34 All. 4, 
11 I. C. 663 ; Ramalingam v. Muihayyan 
(1914) 26 Mad. L. J. 528, 24 I. C. 356, 
(’15) A.M. 6 jHanumaf V. SonudAari (1919) 
4 Pat. L. J. 653, 52 I. C. 734, (’20) A.P. 
708. But see Nathu v. Dindayal (1917) 2 
Pat. L. J. 166, 39 I. C. 665, (’17) A.P. 504 ; 
*Said Ahmed v. Raja Barkandt Mahesh 
Pratap Narain Singh (1933) 8 Luck, 40, 
139 I. C. 64, (’32) A.O. 265 where the 
next senior member executed the mortgage 
and it was held to be binding on the 
family. 

(u) fiawi Ragkubar v. Dip Narain (1923) 45 All. 

311, 71 I.C. 749, (’23) A.A. 287 ; Dhanuk- 
dhari V. Ramhrirxch (1922) 1 Pat. 171, 70 
I.C. 391, ('22) A.P. 663. 

(v) Chiranji Lai v. Bankey Lai (1933) 56 AU. 

370, 142 I.C. 333, ('33) A.A. 273. 




MANAGER. 


283 


the note below). Another view is that for a transaction to he S. 243A 
for the benefit of the estate it is sufficient if it is such as a 
prudent owner, or rather a trustee, would have carried out with 
the knowledge that was available to him at the time of the 
transaction {w). 

Alienation for ** (he benefit of the estate.** — As stated in Hunoornan Persaud*s case 
(see note 1 to s. 242), the power of the manager to alienate the estate can only be exercised 
tightly in a case of need ov for the benefit of the estate.** Para. 27 of Chapter I of the. 

Mitakahara says that the father ha^ no power to alienate immoveable property without 
the consent of his sons. To this there is an exception mentioned by Brihaspati which 
is set forth in para. 28 which is as follows : — 

“ An exception to it follows : * Even a single individual may conclude a donation, 

mortgage, or sale of immoveable property, during a season of distresst for the 
sake, of the family, and especially for pious purposes.’ ” 

The first authoritative exposition of the expression “ for the benefit of the estate ” 
is to be found in Palaniappa v. Devasihamony {x). The question in that case was as 
to the power of a mohunt (head of a math) to alienate debutter land. In the course 
of the judgment the Judicial Committee observed as follows : — 

“ No indication is to be found in any of them as to what is, in his connection the 
precise nature of the things to be included under the description ‘ benefit 
to the estate.’ It is impossible, their Lordships think, to give a precise defini* 
tion of it applicable to all cases, and they do not attempt to do so. The 
preservation, however, of the estate from extinction, the defence against hostile 
litigation affecting it, the protection of it or portions from injury or 
deterioration by inundation, these and such like things would obviously be 
benefits. The difficulty is to draw the line as to what are, in this connection, 
to be taken as benefits and what not.” 

The above passage gave rise to the conflict of opinion noted in the section. In three 
Allahabad cases the view taken was that a transaction to be for the benefit of the estate 
must be of a defensive nature. This view was dissented from in a later case by a Full 
Bench of the Allahabad High Court (y). In that case it was held that a transaction to be 
for the benefit of the estate need not be of a defensive nature, and that the real test was 
whether the transaction was one which a prudent owner would have carried out with the 
knowledge then available to him. As to two (s) of the three earlier cases, the Full Bench 
said that the actual decision in those cases was correct on the facts. No opinion 
was expressed as to the decision in the third case (a), where it was held that a mortgage 
by the manager for starting a new business was not binding on the minor members of the 
family. As to Palaniappa'a case the Full Bench observed that though the instances 
given by their Lordships in that case were all instances where the transaction was of a 
defensive nature, there was no justification for the suggestion that their Lordships 
meant to say that the transactions justifiable on the principle of ‘ benefit to the estate* 
were limited to transactions which were of a defensive natiure. 


(w) Jaffat Jifarain v. Mathura Das (1928) 50 All. 
989, 116 I.C. 484, (’28) A.A. 454 ; Tula 
Hatn V. Tutshi Ham (1920) 42 All. 559, 
60 I. C. 3, (’20) A. A. 11 ; Mahabir 
Prasad v. Amla Prasad (1924) 46 All. 864, 
79 I. C, 517, (’24) A. A. 379 ; Nagindas v. 
Mahomed (1922) 46 Bom. 312, 64 I. C. 
923, (’22) A. B. 122 ; Ragho v. Zaga (1920) 
53 Bom. 419, 118 I.O. 655, (’29) A. B. 
251. 


(») (1917) 44 I.A. 147, 155, 40 Mad. 709, 718, 
39 I.C. 722, (’17)A.PC. 33. 

(v) Jagat Narain v. Mathura Das (1923) 50 All. 

969, 116 I.C. 484, (’28) A.A. 464. 

( 2 ) Bhagivan Das v. Mahadeo (1923) 45 All. 
390. 71 I.C. 959, (’23) A.A. 298 ; Shankar 
V. Rechu (1926) 47 AU. 881, 86 I.C. 769, 
(’26) A.A. 833. 

(a) Inspector Singh v. Kharak Singh (1928)3 0 
Ail. 770, 112 I.C. 881, (28) A.A. 403. 





284 


HINDU LAW. 


S.243A The expression “ in case of need ” in the judgment in Bitnooman Persaud'a case 
may be traced to the words “ during a season of distress ” in verse 28, and the expression 
“ for the benefit of the estate ” to the words “ for the sake of the family.” The original 
word for “for the sake of the family ” in para. 28 is kuiumbarthe. As to this word Shah, J., 
said in a Bombay case (6) that it must be interpreted with due regard to the condi- 
tions of modern life. In a later case (c), Patkar, J., said : “ The explanation of the text 

of Brihaspati by Mitakshara [in v. 29] is by no means to be considered as exhaustive, and 
may be treated as illustrative and interpreted with due regard to the conditions of 
modern life.” 


We now turn to cases decided under the head “ benefit to the estate.” 
The manager of a joint family is not entitled to sell joint family land solely for the 
purpose of so investing the price of its as to bring in an income larger than that derived 
from the probably safer and certainly more stable property, that is, the land itself. 
Such a sale is not “ for the benefit of the estate ” (d). A mortgage of family property for 
the purpose solely of purchasing another property (e), or for the payment of premium 
for a lease of another property (/), is not for the benefit of the estate. But a sale of a 
house in a dilapidated condition, in respect of which a notice has been issued by the 
Municipality to pull it down, is for the benefit of the estate (p). A sale of joint family 
property which is inconveniently situated and is unproductive, the purchase-money 
being invested in another property which is a sound investment {h), or in family 
business (i), is for the benefit of the estate. A sale of such property will be upheld even 
if the price was subsequently lost to the family owing to the failure of the bank in which 
it was invested, provided the intention was to invest the price in another more productive 
immoveable property which the manager could look after (j). Similarly a mort- 
gage of family property for the payment of price for the purchase of a share in a village 
in which the family already posscssed.a share is for the benefit of the e.state {k). A 
mortgage or sale, however, of family property for the purpose solely of pre-empting 
another property is not ordinarily for the benefit of the estate (Z). A deed of exchange 
executed by a manager of the joint family with a view to defeat a suit for pre-emption, 
even though made for property of equal value, was held not to bind the other members 
of the family (m). But a mortgage for making additions to and improvements in the 
family house is for the benefit of the estate (n). A mortgage for the purpose of carrying 
on a speculative litigious suit is obviously not for the benefit of the estate (o). Nor is 
a mortgage for the purpose of repurchasing or acquiring mortgage rights in the estate of 


<6) A’fljirttfus V. Maho‘in'’d 4C Bom. 312, 

316, 64 I.C. 923, ('22) A.B. 122. 

(c) Rogho V. Zaga (1929) 53 Bom. 419, 426, 
118 I.C. 555, (’29) A B. 251. 

(rf) Palaniappa v. Deiiasikamom/ (1917) 44 I. 
A. 147, 156. 40 Mad. 709, 719, 39 I.C. 
722, (*17) A.PC. 33; VtnAmi v. Biim- 
rhandra (1923) 25 Bom. L. R. 508, 73 I.C. 
1017, (’23) A.B. 43. 

(c) Ram Bilag v, Raviyad (1020) 5 Pat. L J. 
622, 627, 58 I.C. 303, ('20) A.P. 441, 
Sellappa v. Suppan (1937) Mad. 906. 171 
I.C. 216, (’37) A.M, 496 ; Ramkaran Thakur 
V Bal(Uo Thakur (1938) 17 Pat. 168, 173 
I.C. 292, (’38) A.P. 44. 

(/) Mduna Lai v. A’aru Singh (1919) 1 Pat. 
L.T. 6, 39 Cal. L.J. 256, 56 I.C. 706, 
(’19) A.PC. 108. 

(g) Nagindag v. Mahonud (1922) 40 Bom, 3l2, 
64 I.C. 923, ('22) A.B. 122. 

(5) Jade Singh v, Nathu Singh (1026) 48 All, 
592, 98 I.C. 773, ('20) A.A. 511. 

(i) Jugmohan v. Prag Ahir (1925) 47 All. 452, 


87 I.C. 27, (25) A.A. 018. 

0) Jd'jut Ifarain v. ^ruthiira Das (1928) 50 All 
969, 116 I.C. 484, ('28) A.A. 4.54. 

{k) Beni Madho v. Chander Prasad (1024) 3 Pat. 
4.»1. 8'3 I.C. 603, (’25) A.P. 189 ; Shaikh 
Jan V. Bikoo (1028) 7 Pat 798, 119 I.C. 
33, (’29) A.P. 130 ; Sitalal v. Ajablnl 
Mander (1939) Pat. 300. 

(0 Shankar v, Bechu (1925) 47 All 381, 86 I.C. 
760, (’25) A.A. 333 ; Kishen Sahai v. 
liaghiinath (1929) 51 All. 473, 116 I.C 
488, (’29) A.A. 139 ; Amraj Singh v. 
Shambu Singh (1933) 55 All. 1, 14 I.C. 509, 
(’32) A.A. 632 ; Dnjmohan Lai v. Sarabjit 
Singh (1038) 13 Luck. 507, 171 I.C. 286, 
(■37) A.O. 513. 

(wi) Balzor Singh v. Raghunanda Singh (1932) 
54 All. 85, 137 I.C. 191, (’32) A.A. 548. 

(n) Ra(namv. CoLaTwiarajufu (1876-1881) 2 Mad- 

339, 341. 

(o) Bhagiean Das v. Mahadeo (1923) 46 All. 

390, 71 I.C. 959, (’28) A.A. 208. 



MAN^AGER. 


285 


a separated brother (p). A mortgage by seTen adult members of the family for acquiring' 5w. 

proprietary interests the consolidation of which had the effect of converting therh. from 243A 244 
mere tenants into landlords is for the benefit of the estate (q). ’ 

A gift by the manager of a joint family of a small portion of zamindari land 
purchased by him to a stranger with the object of defeating a claim for pre-emption 
was held to be a transaction for the benefit of the family and therefore binding on 
the family (r). 

It is submitted that a transaction to be binding on the family must be one which 
not only confers a benefit upon the estate, but is necessarj' for its good 
management {«). 

As to alienations by a widow for the benefit of the estate, see sec. 181 B. As to 
alienations by a natural guardian for the benefit of the estate, see sec. 528. 

244. Burden of proof of necessity, — Where the manager 
of a joint Hindu family sells or mortgages joint family proper- 
ty, the purchaser or mortgagee is bound to inquire into the 
necessity for the sale or mortgage, and the burden lies on the 
purchaser or mortgagee to prove either that there was a legal 
necessity in fact, or that he made proper and bona fide enquiry 
as to the existence of such necessity and did all that was reason- 
able to satisfy himself as to the existence of such necessity (f). 

An intending mortgagee cannot escape the duty of 
inquiring into the legal necessity for a mortgage so as to bind 
the minor members of the joint family, by inducing the guar- 
dian to apply to the Court for permission to raise a loan on 
mortgage and thus attempting to throw the responsibility on 
the Court (u). In general, as the power of the manager is a 
limited power, it is for the mortgagee to show that the trans- 
action was within the authority of the manager (v). 

The existence of a necessary purpose is not the same as a 
legal necessity, for, there may be large resources, a large 
income making a loan unnecessary. The lender must show 
necessity for the loan {w). 

If the purchaser or mortgagee proves that there was a 
legal necessity in fact, the alienation will be upheld, even 
though the necessity was brought about by the previous mis- 
management of the manager, unless it be shown that the pur- 
chaser or mortgagee himself contributed to the mismanagement. 

Even if he fails to prove that there was a necessity in fact, 
the alienation will be upheld, if he proves that he made such 
inquiry as aforesaid. 

(p) Hans llaj v. Khusltal Huufk (11)33) 14 Lal». 

162, 138 I.C. 642, ('32) A.L. 420. 

(}) Baijnath Prasad v. Binda Prasad (1938) 

17 Pat. 549, (’30) A.P. 97. 

(f) Mohib AH Khanv. .BaWfo Prasad (1939) All. 

305. 

(*) Hurry Mohun v. Qanesh Chunder (1884) 10 

Cal. 823, 830 [F.B.] ; Hurgaprasad Barhai 

V. Jeiodhari Singh (1935) 62 Cal. 733. 


vf) Kesar Singh v. Santokh Singh (1930) 17 Loh. 
824. 

(u) In re Dattatreya Govind Haldenkar (1932) 56 
Bom. 519, 141 I.C. 697, (’32) A.B. 537. 
(r) Suraj Baksh Singh v Kedar ^ath (1932) 7 
Luck. 505, 135 I.C. 379, (’32) A.O. 66. 

(m?) Ganpai Jiao v. Ishtoar Singh (1940) Nac. 20, 
(’38) A.N. 816 ; Babu JjcI v. Saiga Naram 
Prasad (1941) All. 680, 197, I.C. 509, 

/•A1\ A A 579 



286 


HINBTJ LAW- 


&9M But a purchaser or mortgagee is not bound to see that 

the money paid or advanced by him is actually applied to 
meet the necessity. The reason is that he can rarely have 
the means of controlling and directing the actual application, 
unless he enters on the management himself (x). 

** There is no diSerence between the burden of proof .when it is desired to support 
n mortgage m(kde by a manager of a joint estate, and that^ which is required to support 
the mortgage made, for example, by a widow who has only a similar limited power of 
disposal ” (y). See s. 182, and the Transfer of Property Act, 1882, s. 38. 

Debts for family business. — As to burden of proof, see fl, 240 (3). 

Alienation for •purposes of family business. — See sec. 246 below. 

Recital of necessity . — Recitals of legal necessity in mortgages or deeds of sale executed 
by the father or manager are admissible in evidence, but are not of themselves evidence of 
such a necessity without substantiation by evidence aliunde’ {z). They may be ooro- 
borated by representation made by the borrower (n). But the recitals are admissions 
of the manager and they also amount to a representation about the peed of the family 
and where owing to the length of time it is impossible to prpduce ^her evidence they 
have evidentiary value also (6). (See cases under s. 182). 

Lapse of time . — ^See notes to s. 182 under the same head. .. 

Rate of interest , — Those who support a mortgage of joint family property made by 
its manager must prove not only that there was necessity to borrow the principal, but 
that it was not unreasonable to borrow at such rate of interest and upon such terms 
as are provided by the mortgage (c). If the rate of interest is exorbitantly high although 
the security is ample, the Court can properly infer that it was unnecessarily high, and 
can make a mortgage decree allowing a reduced rate (d). „Upon a written statement 
alleging that there was no legal necessity to execute the document sued on, the defend- 
ant, while admitting the necessity to borrow the principal, can contend that the rate of 


(x) Ananl Ham v. Collector o/ Htah (1918) 40 All. t 

171, 44 I.C. 290, ('17) A.PC. 188; | 
Hnnooman Persaud v. MH. Babooee 
(1860) 6 M.I.A. 303 ; Soorendro v. Nundun j 
(1874) 21 W.R. 196; Lala Bunseedhur v, I 
Bind-eteree (1866) 10 M.I.A. 454, 471; 
Ihiibai v. Gopibai (1902) 26 Bom. 435 ; 
Kandhia Lai v. Muna Bibi (1898) 20 
All. 135 ; Muddun Thakoor v. Kanloo tail 
(1874) 14 Beng. L.R. 187, 199, 1 I.A. 
321, 334 ; Tula Bam v. Tulshi Ram (1920) 
42 All. 559, 60 I.C. 3, ('20) A.A, 11; 
CAin^amantv. Satyahadi Kar (192^) 1 Pat. 
715. 70 I.C. 226, (’23) A.P. 71 ; Baijnath 
y. Ookul (1923) 45 All. 718, 74 I.C. 498, 
(’24) A.A. 87 ; Radha Ramy. Amar Chand 
(1923) 4 Lah. 208, 77 I.C. 333, ('23) 
A.L. 141 ; Bed Nath v. Rani Rajeshwari 
Devi (1938) 13 Luck. 357, 168 I.C. 725, 
('37) A.O. 400 ; Latla v. Avadh Nare^h \ 
Singh (1940) 5 Luck. 68, 184 I.C. 443. 1 
(’40) A.O. 59. , 

(y) (1918) 40 All. 171, 175, 44 I.C. 290, ('17) I 

A.PC. 188, supra. \ 

(z) Bistcanaih Singh V. Kayaslka Trading 

Corporation (1929) 8 Pat 450, 119 1. C. 405, 
(’29) A.P. 422 ; Bed Nath Singh V. Rani 
Rajeshioari Devi (1938) 13 Luck. 357, 168 
I.C. 725, (’37) A.O. 406. 

(o) Padam Singh v. Reoti Saram ('29) A.A. 481. 
(6) Dwaraka Ram v, Bakshi Pamaw Prasad 
(1935) 14 Pat. 595, 166 I.C. 859. (*35) A.P. 
178. See also Muragenamy. Manickava- 
saka (1917) 44 I.A. 98. 

(c) Jaipal Singh v. Laehman Singh (1934) 9 
Luck. 057 ; Bajrang Singh v. Qobind 


Prasad (1936) 11 Luck. 11, 154 I.C. 841 , 
(’35) A.O. 373. 

(d) .^Tazir Begam v. Rao Raghunath Singh (1919) 
41 All. 571, 676, 40 I.A. 145, 149, 60 I.C. 
434, (’19) A.PC. 12 ; Ram Bujhaioan 
Prasad v. Nathu Ram (1923) 60 I.A. 
14, 20-21, 2 Pat. 285, 290-291, 71 I.C 
933, (‘23) A.PC. 37 (compound Interest 
at 3 per cent, per month payable with 
quarterly rests, reduced to simple interest 
at 1 per cent, per month] ; Radha Kiskun 
V. Jag Sahu (1924) 51 I.A. 278, 4 Pat. 19, 
80 I.C. 791, (’24) A.PC. 184 ; Sunder MuU 
y. Satya Kinker Sahana (1026) 55 I.A. 
85, 7 Pat. 294, 108 I.C. 337, (’28) A.PC. 
64 (interest and compound Interest at 15 
per cent, per annum, rate upheld] ; 
Boja Hurro Nath v, Rundhir Singk (1891) 
18 Cal. 311, 18 I.A. 1 ; .Vandramv. Bkupal 
Singh (1912) 34 All. 126, 13 I.C. 5 ; Ram 
Khdawan v. Bawi Naresh (1919) 41 All. 
609, 51 I.C. 52, (’19) A.A. 268 ; Premukh- 
das y. Ratnbhujaican (1919) 1 Pat. L.T. 
34, 52 I.C. 964, (’20) A.P. 078; Bikhi 
V. Kodai (1919) 41 All. 523, 50 I.C. 814, 
(’19) A.A. 238 ; Mahadeo v. Bis^essar 
(1923) 2 Pat. 488, 74 I.C, 695, (’24) A.P. 
71 ; Parmeshwar v. Raj Kiahore (1924) 3 
Pat. 829, 80 I.C. 34, (*25) A.P. 59 ; Sukh 
Lai V. Murari Lai {1925) 1 Luck. 160, 95 
I.C. 1019, (’26) A.O. 273 ; Durgaprasad 
V. Jewdhari Singh (1935) 62 Gal. 733 
where 18 per cent, compound Interest 
with nine monthly rests was reduced to 
18 per cent, simple Interest. 



MANAGER. 


H87 


interest was unnecessarily high. A plea of no legal necessity for a loan in the written 
statement opens the door for a defendant to say that the rate of interest is excessive 
though there is no specific plea in the written statement that there was no necessity to 
borrow at so high a rate of interest (e). The same rules apply to a mortgage by a Hindu 
widow or other limited owner of property inherited by her from the last full owner (/). 

In two cases the Judicial Committee laid down that the authority of a manager to 
borrow in a case of necessity was one to borrow “ upon reasonable commercial rates ” (^). 
This expression means, as their Lordships observed in a later case, such terms as can be 
arranged freely between borrower and lender in the circumstances of the particular case ; 
ncf reference to the current rate of interest upon mercantile transactions is to be under- 
stood, especially if the parties belong to a community which is not a commercial community 
and ^he transaction is one which no one would call mercantile. In the same case it was 
held wiat a previous borrowing upon terms as onerous as those in question may be evidence 
that those terms are reasonable and proper (A). 

In Oudh 12 per cent, per annum is looked upon as a normal rate of interest 
even wher^ the security is abundant (i). 

245. Purchase-money or money raised on Mortgage applied 
by manager in part only to purposes of legal necessity.— (1) Sale, 
— Cases frequently arise in which joint family property is sold 
by the manager of the family for legal necessity, but the 
whole of the> price is not proved to have been applied to 
purposes of necessity, and the sale is challenged on that 
ground by the other members of the family. In such cases, 
if the sale itself is justified by legal necessity, and the 
purchaser pays a fair price for the property sold, and acts in 
good faith and after due inquiry as to the necessity for the 
sale, the mere fact that part of the price is not proved to have 
been applied to purposes of necessity would not invalidate 
the sale, the purchaser not being bound to see to the applica- 
tion of the price. If the above conditions are satisfied, the sale 
must be upheld imconditionally, whether the part not proved 
to have been applied to purposes of necessity is considerable 
or not {j). See s. 189. 


^e) liam Bujhawan Prasad v. Natha Ham (1923) 
60 I.A. 14, 22, 2 Pat. 285, 287, 71 I.C. 
933, ('23) A. PC. 37 ; Radhakishiin v, Jag 
Sahxi (1924) 51 I.A. 278, 4 Pat. 19, 80 
I.C. 791, (*24) A.PC. 184, 

(/) Radha Kishun v. Jag Sahu (1924) 51 I.A. 
278, 4 Pat, 19, 80 I.C. 791, ('24) A.PC. 
184 ; Ham Dayal v. Amin XJddin (1931) 
29 All. L.J. 29, 133 I.C. 311, (*31) A, A. 203. 
(g) Nazir Begam v. Rao Raghunath Singh (1919) 
41 All. 571, 576, 46 I.A. 145, 149, 50 I.C. 
434, (*19) A.PC. 12 ; (1924) 61 I.A. 278, 4 
Pat. 19, 80 I.C. 791, ('24) A.PC. 184, supra. 
(A) Sunder Mull v. Satya Kinker ^aAana (1928) 
55 I.A. 85, 7 Pat. 294, 108 I.C. 337. ('28) 
A.PC. 64. 

(t) Suraj Baksh Singh v. Kedar Nath (1932) 7 
Luck. 605, 135 I.C. 379, (’32) A.O. 66. 

(j) Krishna Dasv. NaikuRam{l92.1) 54 I.A. 79, 
49 AU. 140, 100 I.C. 130, (’27) A.PC. 37 
[price Es. 3,600 — Rs. 600 not proved to 
have been applied to purposes of neces- 
sity — sale upheld unconditionally] ; JVia- 
mat Rai v. Bin Dayal (1927) 64 I.A. 211. 
8 Lah. 597, 101 LC. 373, (’27) A.PC. 121 
(sale upheld unconditionally] : Masit 


Ullah V. Damodar Prasad (1926) 53 I.A. 
204, 48 All. 618, 98 I.C. 1031, ('26) A. 
PC. 105 (price Rs. 18,400— Rs. 2,000 not 
proved to have been applied to purposes of 
necessity — sale upheld unconditionally] ; 
Oauri Shankar v, Jiican Singh (1928) 30 
Bom. L.R. 64, 107 I.C. 4, (’27) A.PC. 246 
(price Rsl 4,000 — Rs. 600 not applied to 
purposes of necessity — saie upheld uncon- 
ditionally] ; Shyam Lai v. Badri Prasad 
(1929) 61 All. 1039, 122 I.C. 744, (’29) 
A. A. 789 ; Ham Sunder v. LaccAmi ( 1929) 
51 All. 430, 160 I.C. 605, (’20) A.PC. 148 
(price Rs. 10,767 — Rs. 3,083 not proved to 
have been applledtopuiposesof necessity — 
sale upheld unconditionally] ; Achutanand 
V. Surjanarain (1926) 6 Pat. 746, 95 I.C. 
991, (’26) A.P. 427 [price Rs. 750— Rs. 200 
not proved to have been applied, etc. — 
sale upheld unconditionally] ; Suraj Bhan 
Singh V. Sah Chain Stikh (1927) 29 Bom. 
L.R. 1385 [P.C.], 105 I.C. 257, (’27) A. 
PC. 244 [sale by widow] ; Murbi v. 
Ohammar (1929) 51 All. 61, 121 I.C. 285. 
(*30) A. A. 22 ; Johnston v. Gopal Singh 
(1931) 12 Lah. 546, 183 I.C. 628, (’31) 
A.L. 419. 


Ss. 

244, 24S 



288 


HINDU LAW. 


In an Allahabad case (fc), where the sale was for Rs. 6,000 which was a fair price 
but the amount proved to have been applied for purposes of legal necessity was only 
Bs. 3,281, and there was no evidence of any inquiry having been made by the purchaser 
as to the necessity for the loan, it was held that the sale itself was not one which was 
justified by legal necessity, and that it should be set aside conditionally on payment by 
the plaintiffs of Rs. .3,281 to the purchaser. 


A contract of sale may be justified by legal necessity, as 
where it is made for payment of a previous mortgage debt. 
But it may be improvident and therefore beyond the powers 
of the manager, as where he has entered into a previous agree- 
ment for a sale of part of the property and is therefore unable 
to complete the sale, and the purchaser is thereby placed in a 
position indefinitely to postpone completiijgi of the purchase 
and payment of the price, so that the c^liract may be of no 
value to relieve the financial necessity existing at its date. In 
such a case, if the sale is completed at a time when it is depriv- 
ed of all value as a solvent of the family’s’financial difficulties 
the sale should be set aside, but if the purchase money has 
been applied by the manager in payment of the mortgage debt, 
the purchaser should have the full benefit of the mortgage. 
An example of the commonest kind where the sale would 
be deprived of all value as a solvent of the family’s financial 
difficulties would be where the price at which the property is 
agreed to be sold is Rs. 22,500, and the mortgage debt at the 
date of the contract of sale is Rs. 14,000, but the sale is com- 
pleted after several years, and the mortgage debt at the date 
of sale has augmented to a sum equivalent almost to the price 
of the property, so that at the date of the completion of the 
sale hardly any surplus is left to the vendor (Z). 

(2) Mortgage . — It has been held in Oudh that the rule 
stated in sub-sec. (i) applies only to sales, and not to mortgages. 
The reason given is that it is not always possible for the 
father [or manager] of a family to sell that share of the property 
which will bring in the precise sum which is wanted to clear 
the debts which are binding, while in the case of a mortgage 
he can borrow the precise amount required to meet the family 
necessity. The mortgage therefore can be redeemed on pay- 
ment to the mortgagee of such sum only as was required 
for legal necessity (m). The decision has been followed by 


(jk) 5ri Nath Jagannath <1931) 52 All. 391, I 
126 I.C. 230, ('30) A. A. 292. Sec also 
Laehman Prasad v. Samam Singh (1917) 1 
39 All. 500, U I.A. 183, 40 I.C. 284, 1 
('17 ) A. PC. 41 [mortgage], I 


(1) Ram Charan v, Bhajwandas (1920) 53 I.A. 
142, 48 All. 443, 95 I.C, 898, (’25) A.PC. 88. 

(nO Thahir Jai Indra v, Lala Khairati Lai (1929) 
4 Luck. 107, 113 I.C. 489, ('28) A.O. 485. 



MANAGER. 


289 


the High Court of Patna (n). In a case where the mortgage 
was for Rs. 12,000 and it was’fi'und that there was justifiable 
necessity only for Rs. 7,700, the Calcutta High Court held that 
there was no bona fide inquiry and granted a decree only for 
the latter sum with the corresponding interest, at the same 
time observing that it was not necessary to express any 
opinion on the question discijgsed above (o). 

Illuatrations of sub-scc, (1). 

(a.) A joint Hindu famil}* consists of a father and his minor sons. The father sells 
one of the joint family properties for Rs. 3,500 out of which Rs. 3,000 are paid to the 
creditors of the family. Afterwards the sons sue to set aside the sale on the ground that 
the surplus of Rs. 500 was not applied to purposes of necessity : It is proved that the 
price was adequate and that tfie purchaser had made due inquiry as to the necessity 
for the sale. The mere fact that the surplus is not proved to have been applied to pur- 
poses of necessity is not a sufficient ground in law for setting aside the sale : Krishn Das 
V. Nathu Ram {1927} 54 L A, 79, 49 AIL 149, 100 I. C. 130, (’27) A.PC. 37. [In this 
case, the High Court of Allahabad held that the surplus of Rs. 500 was a “ considerable ” 
part of the whole price, and passed a decree scttingaside the sale conditionally upon 
the sons paying Rs. 3,000 to the purchaser, but the decree of the High Court was reversed 
on appeal by the Judicial Committee.] 

(b) A Hindu widow sold immoveable property inherited by her from her husband 
forRs. 2,142. The whole of the price except Rs. 105 was applied lo purposes of necessity. 
In a suit by the reversioners to set aside the sale, the High Court of Allahabad held that 
the amount not proved to have been applied to purpose.s of necessity being a ‘‘ small ” 
one, the sale should be upheld, but the Court directed the purchaser to repay to the 
plaintiffs the sum of Rs. 105 [Daiilat v. Saukkata (1925) 47 All. 355, 86 1. C. 91, (’25) 
A. A. 324], This decision was disapproved by the Judicial Committee in the case cited 
in ill, (a) as being opposed both to principle and authority. 

The leading case on the subject is Krishn Das v. Nathu Ram (1927) 54 I. A. 79, 49 
All. 149, 100 I. C. 130, (’27) A.PC. 37. Prior to the decision in that case it was held 
by the High Court of Allahabad (I) that if the portion of the price not proved to have been 
applied to purposes of legal necessity was considerable, the Court should pass a conditional 
decree setting aside the sale on payment by the plaintiffs [that is, the coparceners challeng- 
ing the sale] to the purchaser of the sum which was found to have been applied for purposes 
of necessity (p) ; (2) that if such portion was small, the Court should pass a conditional 
decree upholding the sale on repayment by the purchaser of such portion (g) ; and (3) 
that if such portion was a trifling sum, the Court should uphold the sale without imposing 
any condition upon the purchaser (r). These decisions were disapproved by the Judicial 


(n) Dwaraka Ram v. Bakshi Parnaw Prasad 

(1935) 14 Pat. 595, 156 I.C. 859, ('35) A.P. 
178, distinguishing Eitendra v. Sukf^o 
(1029) 8 Pat. 558, 115 I.C. 886, ('29) 
A.P. 360. 

(o) Durga Prasad Borhai v. Jeivihari Singh 

(1935) 62 Cal. 733, 161 I. C. 595. ('36) 
A.C. 116. 

(p) Oobind Singh v. Baldeo Singh (1003) 25 All. 

330 [sale by widow — ^price Rs. 3,299 — 
Rs, 376 not proved to have been applied 
to purposes of necessity] ; Ram Devi v. 
Abu Jafar (1905) 27 Ail. 494 [sale by 
widow-price Rs. 2,995— Es. 445 not 
proved, etc.]; Jainarayin v. Bhagvan 

10 


(1922) 44 All. 683, 80 I. C. 1006, (’22) A.A 
321 [price Rs. 375 — Rs. 101 not proved, 
etc.]; Dwarka Ram v. Jhulai (1923) 45 
All. 429, 431, 72 I. 0. 134, (’23) A. A. 
248 [price Rs. 600 — ^Rs. 200 not proved, 
etc.], 

(g) Daulalv. Sankhata (1925) 47 All. 355, 86 I.C. 
91, (’25) A. A. 324 [price Rs. 2,142— 
Rs. 105 not proved to have been applied 
to purposes of necessity]. 

(r) Lai Bahadur v. Kamleshar (1926) 48 All. 183, 
90 I, C. 988, (’25) A. A, 624 (F.B.) [price 
Rs. 5,905 — Rs. 259 not proved to have 
been applied to purposes of necessity.] 


S.245 



290 


HINDU LAW. 


S.245 


Committee in an appeal from Allahabad, and it was held that a sale of joint family 
property should not be set aside merely because a considerable part of the purchase money 
is not proved to have been applied to purposes of legal necessity. The real question to be 
considered is wliether the sale itself was justified by legal necessity ; if the purchaser 
has acted honestly and made due inquiry as to the existence of necessity for the sale, he is 
not bound to account for the application of tho price. If the above conditions are fulfilled 
the sale must be upheld. It was also held that on the same principle a decree upholding a 
sale conditionally upon the purchaser paying a small part of the price not proved to have 
Ireen applied to purposes of necessity is also contrary to law ; the sale must be upheld 
unconditionally. 

In Krishn Das v. Nalhu Ram (s), the Judicial Committee adopted the principles laid 
down by the same tribunal in 1856 in Hanooman Persand v. Musummai Babooec {1). 
The materia! portions of the judgment in Hanooman Persavd'a case have been set out in 
the notes to s. 242 above. That case related to a mortgage created by a mother of 
property belonging to her minor son as his natural guardian. Kver since the decision in 
that case the principles laid down in that case have been applied to sales and mortgages 
of joint family property effected by the manager of the family and to sales and mort- 
gages by a Hindu widow of property inherited by her from her husband. Almost all 
the cases cited by the Judicial Committee in Krishn Das v. Nathu Ram, as supporting their 
decision, were cases of sales by a Hindu widow. The point emphasized in both the case.? 
was that the validity of a sale in such cases did not depend upon proof of the application 
of the price. The reason is that a bona fide purchaser for value is not bound to see to the 
application of the price paid by him ; if it were otherwise, he would himself have to enter 
on the management an^ direct and control tho actual application of the money. Hence 
it has been held that the mere fact that a considerable part of the price, c.g., Es. 712 out 
of Ra. 5,300 (u), or Rs. 2,000 out of Rs. 18,400 (ti), or Rs. 5,100 out of Rs. 43,500 (w), 
or even one.third of the whole price (x), is not proved to have been applied to purposes 
of necessity, is not a suflScient ground in law for setting aside the sale. In the course of 
the judgment in Krishn Das v. Nathu Ram, their Lordships of the Privy Council observed 
as follows : — 


“ It would rather appear that in any case where the sale has been held to be justified 
but there is no evidence as to the application of a portion of the consideration, a presump- 
tion arises that it has been expended for proper purposes, and for the benefit of the family. 
This is in line with the series of decisions already referred to, in which it was held that 
where the purchaser acta in good faith and after due inquiry, and is able to show that the 
sale itself was justified by legal necessity, he is under no obligation to inquire into the 
application of any surplus and is, therefore, not bound to make repayment of such surplus 
to the members of the family challenging the sale.” 

The decision in Krishn Das v. Nathu Ram was followed by the same tribunal in 
Niamal Rai v. Din Dayal (y). In that case the managing member of a joint Hindu family 
sold part of the joint property for Rs. 43,500, which was the full value. Out of the price 
Rs. 38,400 W'as applied to discharge debts incurred in carrying on a business to which 
the joint family had succeeded and the balance was invested in that business. Two 
min or members of the family sued to set aside the sale on the ground that the surplii.s 
of Rs. 5,100 was not applied to purposes of necessity. It was held that even if there 
had been no joint family business, proof that pre-existing debts to the amount of Rs. 38,400 


(«) (1027) 64 I.A. 79, 49 All. 149, 100 l.C. 130, 
('27) A.PC. 37. 

(() (1856) 6 M. I. A. 393, 423-424. 

(u) Medal Dotaroi v. A'ainar 3’atan (1922) 27 C 
W. N 365, 74 I. C. 604, ('22) A PC. 307. 
(o) Most! Vllab V. Danodar Prasad (1026) 
53 I. A. 204, 48 All. 518, 98 I. C. 1031, 


(■24) A.PC. 105. 

(id) Itiamat Itai v. Din Dayal (1927) 54 I.A. 211, 
8 Lain 597, 101 l.C. 373, ('27) A.PC. 121. 
(z) Ram Qopal Ghose v. BuUodeh Bose (1804) 
W. R. 385. 

(y) 54 I.A. 211, 8 Lah. 697, 101 I. C. 373, (’27) 
A.PC. 121, supra. 



MANAGER 


291 


had been satisfied out of the price, would support the sale, without showing how the 
balance had been applied. See s. 189 and notes. 


246, Alienation by manager of coparcenary property for 
purposes of family business. — The power of a manager 
to carry on a family business necessarily implies a power to 
mortgage or sell the family property for a legitimate and 
proper purpose of the business. An alienation so made is 
binding on the family property, including the interest of minor 
coparceners therein (z). Further, the manager has authority to 
raise money not only to discharge debts arising out of the family 
business, hut also money needed to carry it on. It is a matter 
for his decision whether the money necessary- should be raised 
by mortgage or by a sale, and whether it was better to raise 
money to continue a business which latterly had not been 
profitable, or to close it down ; it would be unreasonable to 
expect a lender or purchaser to investigate questions of that 
kind (a). If the lender or purchaser acted honestly and with 
due caution, and made reasonable inquiries which led him to 
believe that a sufficient and real necessity for the raising of 
the money for the purposes of the family business did exist (&), 
nor is he bound to see to the application of the money (c). 
Where the alienation was made by a manager who was blind 
and deaf and practically all the money which had been dis- 
allowed by the High Court had been borrowed by the fourth 
and fifth defendants, who were the eldest members of the 
family and the manager’s right-hand men, their conduct in not 
giving evidence and remaining as defendants, while causing 
their sons to file the suit questioning the alienation, was 
held by their Lordships of the Privy Council to be strong 
corroborative evidence of legal necessity (d). 


A mortgage by the manager for enlarging a family business 
by the purchase of fresh stock is binding on the family property 
including the interest of the minor coparceners therein, provided 
the transaction is one which a prudent owner would enter into 
having regard to all the circumstances of the case (e). 


( 2 ) Ram Krishna v, Hataa Ghana (1931) 58 I. A. 
173, 53 All. 190, 132 I. C. 013, (’31) A. 
PC. 130 ; RanUal v. Lakhviichand (1861) 1 
Bom. H. C. App. li ; Sham Sundar v, 
Achhan Kunwar (1899) 21 All, 71, 83, 
25 I. A. 183, 192 ; Khem Chand v. Narain 
Das (1925) 0 Lah, 493, 89 I. C, 1022, 
('20) A. L. 41 ; Mahahir Prasad v. Amla 
Prasad (1924) 46 All. 364, 79 I.C, 517, 
(*24) A. A. 379 ; Narayanan v. Mnihiah 
(1924) 47 Mad. 692, 80 I, C. 654, (’24) 
A. M. 680. 


(a) NiamatRaiy. Din Dayai (1927) 54 1. A. 211, 
8 Lah. 597, 101 I.C. 373, (’27) A.PC. 121. 
(ft) Ram Nath v, Chxranyi Lai (1935) 57 AU. 605 
(F.B.) 156 I.C. 136, (’35) A.A. 221. 

(c) Aaml'risAna v. Raian Chand (1931) 58 I. A, 

173, 53 AU. 190, 132 I.C. 013, (*31) A.PC. 
136. 

(d) Jagannath v. Shri Nath (1934) 56 All. 123, 61 

I,A. 150, 147 I.C. 903, (’34) A.PC. 85. 

(e) Raj Kamar v. Mohan Lai (1931) 29 AU. L. 

S. 219, 131 I.C. 873, ('31) A.A. 253. 


Ss. 

245, 246 



292 


HINDU LAW. 


Ss. 

246.249 


A manager in executing a mortgage for a legal necessity 
may, under section 69, Transfer of Property Act, confer, on 
the mortgagee, the right of sale without recourse to the 
court (/). 

As to new business, see a. 234 {2). 

247. Eeference to arbitration by manager. — A father {g) 
or other manager has power to refer to arbitration disputes 
relating to joint family property provided such reference is for 
the benefit of the family. The other members of the family 
including minors are bound by the reference and by the award 
made upon it (h). 

The reference may be in respect of disputes between the family and an outsider, or 
disputes between members of the family themselves, e.g., as to shares on partition. 

248. Compromise by manager. — A compromise entered 
into by the manager bona fide for the benefit of the family, 
binds the other members of the family including minors (i). 

But n-here a suit relating to joint family property, to which a father and his minor 
sons are parties, is pending and the father himself is the next friend or guardian ad litem 
of the minors, his powers are controlled hy the provisions of 0. 32, r. 7, of the Code of 
Civil Procedure, 1908, and he is debarred from entering into any compromise relating 
to the joint family property without leave of the Court. The minors are not bound in 
such a case either by the compromise or by a consent decree in terms of the 
compromise (J). The Court may in such a case set aside the whole compromise (t). A 
manager of a joint family is subject to 0. 33, rr. 6 & 7, of Civil Procedure Code (1). 

248A. Manager’s power to give valid discharge for debts.— 
The manager has power to give a valid discharge for a debt 
due to the joint family. Hence if one of the members is a 
minor, he cannot claim the benefit of sec. 7 of the Limitation 
Act (m). 

249. Acknowledgment and part payment of debt by manager. 
— It is competent to a manager to acknowledge a debt, or to 


{/) Paramnnand Dass Cftota Bass tb Sons 
V. Mannulal Kanji tfc Ors. (1942) Mad. 
287, 201 1.C. 62, (*42) A. M. 232 (1941). 

(j) Shanixlal v. ^lunshilal (1932) 56 Bom. 505, 
130 I.C. 820, (’32) A.B. 498. 

(^i) Jaqan Nath v. Manxi Lai (1894) 16 All 
231 ; Ifalaji v. Nana (1903) 27 Ik>ni. 287 , 
Dwarkadas v. KrUhon (1921) 2 Lah. 114, 
121-124, 01 I.C. 628, (’21) A.L. 34; 
Gtcran. Ditta v. Pokar Ham (1927) 8 Lali. 
693, 104 I.C. 202, (’27) A.L. 302 ; Nanak 
Ckand V. Banarsi Das (1931) 12 Lah. 05. 
126 I.C. 570, (’30) A.L. 425; Kansli 
Bam V. Harnani Das (1940) 21 Lah. 
599, 188 I.C. 403, (’40) A.L. 73. j 

(?) Pitam Singh v. XJjagar Singh (1878) 1. All. [ 
651 ; Dwarkadas v. Knshan (1921) 2 Lah I 
114, 123-124, 61 I.C. 028, (’21) A.L. 34 , 
Dangal Bam v. Jaimangal (1026) 5 Pat. 
4S0, 95 I.C. 1051, (’26) A. P. 3C1 ; Bhagwan ‘ 


Singh V. Behari Lai (1938) KatJ. 221, 
172 I.C. 43, (’37)A.N. 237. 

(j) Ganesha Bow v. Tuljaram Boic (1913) 40 I. A. 

132, 36 Mad. 295, 19 I.C. 515. 

(A-) Venkata Bow v. Tul]aram (1022) 40 I.A. 
01, 45 Mad. 298, 74 I.C. 765, (’22) A. PC’. 
69 [continuation ot litigation in 40 I A. 
132, 19 I.C. 515, supra]. 

(0 Fatmabai v. Tukabai (1945) Nag. 242. 
(m) Bali Bam v. Niadar (1919) 41 All, 435, 49 
I.C. 990. (’19) A. A. 200; Dabu v. Bala 
<1921) 45 Bom. 440, 59 I C. 7.50, (’21) 
A.B. 280 ; Supdu v. Sakharam (1928) 52 
Bom. 441. 110 I.C. 276, (’20) A.B. 13 ; 
T'ttrarfa Bhaktai atsuludn tt* Ors. v. Damogi 
Piirupu Venkat Narasimha Bao <fc Ors. 
(1940) Mad. 752, 191 I.C. 309, (’40) A.M 
530. 



PARTIES TO SUITS, 


293 


pay interest on a debt, or to make part payment of a debt, so 
as to extend the period of limitation, but he has no power to 
pass a promissory note so as to revive a debt barred by the 
law of limitation {%). But he can renew a note, the time for 
filing a suit on which expired during the summer recess of a 
court and the suit could therefore be filed on the reopening 
day (o). 

A manager or a, member cannot keep a debt alive against 
the other members of the family by making payments after 
partition (p). 

Indian Limitation {Amendment) Act 1 of 1927. — It is now expressly provided by the 
Indian Limitation (Amendment) Act 1 of 1927 that for the purposes of secs. 19 and 20 of 
the Indian Limitation Act, 1908, where a liability has been incurred by, or on behalf of 
a Hindu undivided family as such, an acknowledgment or pa 3 ^ment made by, or by the 
duly authorized agent of, the manager of the family for the time being shall be deemed 
to have been made on behalf of the whole family. Sec. 19 of the Limitation Act, 1908, 
deals with acknowledgments, and sec. 20 with payment of interest as such on a debt and 
with part payment of principal. The portion of the Amending Act set out above is an 
addition to sec. 21 of the principal Act, the additional portion being sub-sec. (3) (b). 
The Amending Act is set out in Appendix IV below, 

lievival of Hme-barred debt. — As to revival of a time-barred debt by passing- a pro- 
missory note, see the Indian Contract Act, 1872, s. 25 (.*1). If the manager revives a 
timo-barrod debt by passing a promissory note, he alone is liable on the note {g). 

Admissions hy father . — “ In the case of a Mitakshara father who is the karta, an 
implied authority to make an admission for the benefit of his minor sons may very 
well be presumed ” (r). 

250. Eelinquishment of debt by manager. — The manager 
has no power to give up a debt due to the joint family (s). 

251. Parties to suits. — {1) Where the manager of a joint 
family, having power to do so, enters into a transaction in his 
own name on behalf of the family, whether it be a contract (i). 


(«) lihusker v. Vijalal (1803) 17 Bom. 512 ; 
Dinkar Appaji (1896) 20 Bom. 155 ; 
Ctiiiinai/a v. Gurunathain (1882) 5 Mad. 
169 ; l)alip Singh v. Kund<in Lai (1913) 
35 All. 207, 18 I.C. 726 ; Sadhu Saran v. 
Brahindeo (1921) 6 Pat. L J. 250, 260- 
261, 01 I.C. 20, (’21) A.P. 20D ; Thakar 
Das V. Msl. Putli (1924) 5 Ball, 317, 82 
I C. 96, (’24) A.L. 611, 

(o) Subba Jleddi v. V enkataramai/ya (1945) 
Mad. 034. 

(ji) Pangudaya v. Uddandiya (1938) Mad. 96S, 
177 I.C. 188, (’38) A.M. 774 ; Itaiujasioavii 
Ayyangar Sivaprakasam Pillat A’ Ors 
(1942) Mad. 251, 198 I.C, 177, (’41) 
A.M. 925. 

(?) Thakar Das v. Msf. Putli (1924) 6 Lah. 
317, 82 I.C. 96, (’24) A.L. 611. 

(r) Surendra Nath v. Sambhunath (1928) 55 Cal. 

210, 218, 104 I.C. 219, (’27) A.C, 870. 

(s) Dasaratharama v. Naraha (1928) 51 JIad. 

484, 109 I.C. 329, (’28) A.M. GOl. 

(0 Kxshen Parshad v. Uar Narain Singh (1911) 
38 I.A. 45, 33 All. 272, 9 I.C. 739, reversing 
29 All. 311 [money lending transaction] ; 


Uamnath v. Bamrao (1922) 40 Bom. 3.58. 
64 I.C. 066, (’22) A.B. 281 [promissory 
note] ; Gangaram v. Bapusaheb (1922) 40 
Bom. 1022, 84 I.C. 508, (’22) A.B. 354 
[rent-note] ; Jagabhai v. Bustamji (1885) 
9 Bora. 311 (partnership agreement 
between manager and stranger to family] , 
Anant Itam v. Channu Lull (1903) 25 All. 
378 [partnership agreement between 
manager and stranger to family] ; Gopal 
Das V. Badri Nath {100o)‘i7 AU. 361 [goods 
sold and delivered] ; Durga Prasad v 
Daniodar Dus (1910) 32 All. 183, 5 I.C. 767 
[purchase of silver bars] ; 2?aM Kishayi 
V. Gfliwa iiam (1931) 12 Lah. 428, 133 I C. 
110, (’31) A.L. 559. The decisions to the 
contrary in Seshanv. Veeia (1909) 32 Mad. 
284, 4 I.C. 38 [account stated], and Sham- 
ratki V, Kisheii (1907) 29 All. 311, 314 
[account stated], arc no longer good law. 
The decision in Alagappa v. Vellian Chetii 
(1895) 18 Mad. 33 (contract of employ- 
ment], may be supported on the ground 
that the single plaintiff in that suit was 
not 8ho^vll to be the manager — see 38 T.A. 
45, 53, ^3 All. 272, 278, 9 I.C. 739. 


Ss. 

249-251 



294 


HINDU LAW. 


S.251 


or a mortgage (u), or a sale («), he may sue or be sued alone 
in respect of that transaction. Where the mortgage by the 
manager extends to the entire interest of the family and is 
not confined to the manager’s share he must be deemed to 
have acted in the transaction on behalf of the family {w). 
The other coparceners are not necessary parties to a suit on 
such a mortgage, as they are effectually represented by him {x) 
and are bound by the decree in the suit {y). But a member 
vrho contends that the action of the manager was beyond 
his powers is not properly repre.sented by the manager and 
ought to be joined as a party if he wishes (z). 

The above proposition is based upon two decisions of the Privy Council set out in 
dlustrations (1) and (2) below. 

Illustrations. 


(1) A and B are managers of a joint family which carries on the business of money- 
lenders. As such managers they advance moneys belonging to tho joint family to C. 
A and B are entitled to sue G on an acknowledgment passed to them by C in respect of 
the money dealings. Tho other coparceners are not necessary parties to the suit. Accord- 
ingly tho joinder of tho other coparceners as plaintiffs after the statutory period has 
expired, being unnecessary, does not prevent the suit as originally constituted from being 
in time ; Kishen Parshad v. Har Narain Singh (1911) 38 I. A. 45, 33 .Ul. 272, 9 I. C. 739. 
But after partition the position of the members is that of partners and all must sue (o). 


(2) Jli mortgages two immoveable properties to J. He then borrows moneys from 
H and B, the managing members of a joint Hindu family, and executes a second mortgage 
of one of the properties to them. He also sells the equity of redemption of tho other 
property to U and D, and executes a sale-deed in their favour. J sues 31, H and D on 
his mortgage, and obtains a foreclosure decree against them. Tho other members of 
the joint family are not parties to the suit. H and D do not avail themselves of the right 
to redeem, and the decree is mado absolute. The decree is binding on the other members 
of the family, and they are not entitled to sue J for redemption : Sheo Shankar v. Jaddo 
Kunwar (1914) 41 I, A. 216, 220, 36 All. 383, 24 I. C. 504, (T4) A.PC. 136. In the 
course of the judgment their Lordships of the Privy Council said : — 


(b) Sht'o s^ihanKtir v, JaiUio Kunwar (1914) 41 
l.A. 210, 220, 30 All. 303^ 300-387, 24I.C. 
.'lOl, ('14) A.PC. 130 Rtfmg. 33 AM. 71, 
7 I.C. 902 [a case under Transfer of 
Property Act, s 85] ; Han Lai v. Man- 
min Kuvivar (1012) 34 AM. 549, 15 
1 C. 120 [a case under C.P C , O. 34, r. 1 ]; 
Mailan Lai v. Kishan Sinyh (1912) 34 All. 
.■>72, 15 I.C. 138 [ditto] ; liam Krishna 
V. Vinayak (1010) 34 Bom. 354, 5 I.C. 967 
[Transfer of Property Act, a 85] ; CJnmna 
V Sada (1910) 12 Bom. L.B. 811, 7 I.C 
900 [ditto] ; Sheikh Ibrahim v. Kama 
liter (1912) 35 Mad. (185, 5 I.C. 967; 
Ilaghunandan v. Parmeshivar (1917) 2 Pat. 
L.J. 300, 39 I.C. 779, ('17) A.P. 375 
(a case under C.P.C., O. 34, r. 1] ; Jag 
Sah V. 2(am Chandra (1921) 0 Pat. L.J. 
040, 63 I.C. 564, (’21) A.P. 377 [ditto]; 
Sheikh Abdul v. Shiv Lai (1921) 6 Pot. L. 
J. 650, 63 I.C. 570, (’22) A.P. 252 ; Kungse 
V. Soodist Lull (1882) 7 Cal. 739 , Raimyva 
V. Venkataratnam (1894) 17 Mad. 122; 
J*irthipal v. liameshwar (1927) 2 Luck. 
288, 99 I.C. 154, ^27) A.O. 27 [foreclosure 
suit — 0. 34, r. 1] ; Madhusudan y. B?iag- 


wan (1929) 53 Bom. 4U, 118 I.C. 780, 
(’29) A. B 213. The dcCHions to the con- 
trary in Lebi Prasad v Dharamjit (1014) 
41 Cal. 727, 22 I.C. 570, (’14) A.C. 455, 
and Kamchandra v. Shriputrao (1916) 40 
Bom. 248, 33 I.C). 771, (’16) A B. 278, 
can no lont;er he upheld 

(») (1914) 41 l.A. 216, 36 AM. 383, 24 I.C. 
504, (’14) A.PC. 136, supra [purchase 
of equity of redemption], supra. 

(mj) Laulat Kamy. Mherchand (1888) 15 Cal. 70, 
14 l.A. 187 ; Kamanathan Chettxar v, 
S. Km. 3f. a iir. Firm (1937) Mad. 376. 
108 I.C 731, (’37) A.M. 345 

(x) Venkatanarayana v. .Somraju (1037) Mad. 

880(FB), 171 I.C. 101, (’37) A.M. 010. 

(y) Kamnathan Chettiar v. S. Km M. Ct. M. 

A’irm(1937) Mad. 370, 168 I C. 731. (’37) 
A.M. 345 ; Bhaijwan Singh v. Beharilal 
(1938) Na-?. 221, 172 I.C. 43, (’37) A.N. 
237. 

(z) Motxram v. Lalchand (1937) Nnc. 362, 172 

I.C. 192, ('37) A.N. 121. 

(a) Bihari La/ v Pt. Kam'ihandra Sharma 
(1942) T7 Luck. 702, 200 I.C. (’42) A.O. 

•JOS ' ' 



PARTIES TO SUITS. 


ZifO 


'■ There seems to be no doubt upon the Indian decisions (from which their Lordships 
see no reason to dissent) that there are occasions including foreclosure suits when the 
managers of a joint Hindu family so effectively represent all other members of the family 
that the family as a whole is bound. It is quite clear from the facts of this case and the 
findings of the Courts upon them that this is a case where this principle ought to be applied. 
There is not the slightest ground for suggesting that the managers of the joint family did 
not act in every way in the interests of the family itself.” 

It is not necessary that the manager, either when he sues or is sued, should be 
described as such in the pleadings. In a suit by the manager, where it is necessary, in order 
to safeguard the interest of the defendants, to implead the other members of the family, 
the defendants may apply to bring them on record (b). 

(2) Wliere a transaction is entered into in the names of 
two or more managers of the joint family, they must all join as 
plaintiffs in the suit (c). 

{3) Even if the suit be one on a contract which is not 
in writing signed by the manager, the manager may sue alone 
as representing the family {d). 

{4) There is a conflict of opinion whether, as regards 
immoveable property belonging to a joint family, the manager 
is entitled as such to bring a suit to establish a right in respect 
of such property without making the other members of the 
family parties to the suit, it being held in some cases that he 
is (e), and in others that he is not (/). It would seem from a 
recent Privy Council decision that he is (g). [See snb-sec. (5) 
below]. 

In Kishen Parshad v. Bar Narain Singh {h), their Lordships of the Privy Council 
in dealing with the judgment of Tumor, C. J., in KcUiusheri v. Vallotil (i), said : — • 

“ Tumor, C.J., held that all the co-owners in such a case must join, and that they 
could not invest the managers of their property with the right to sue in their own names 
or in a representative capacity, Their Lordships think that this proposition thus broadly 
slated as to co-oivnership cannot bo applied to the managing members of a business carried 
on for an undivided Hindu joint family. It was not so applied in the later case of 
Arunachala v. Vythialinga (j), where it was stated that the managing member of an 
undivided Hindu family suing as such is entitled to bring a suit to establish a right 
belonging to the family without making the other members of the family parties to the 
suit.” 


(t) Mudhgouda Babaji v. Kalappa^alappa{^93■i) 
58 Bom. 348, 151 I.C. 370, (’34) A.B.178 . 

le) Itam^ebuk v. Ham Lall (1881) 0 Cal. 815 , 
I mim-ud-din v. LUadhar (1892) 14 AH. 
524, both explained in 38 I. A. 45, 52, 53, 
33 All, 272, 277-278, 9 I.C. 739. 

(d) Bhola Roy v Junq Bahadur (1914) 19 Cal- 

L.J. 5, 9, 22 I.C. 798, (’14) A.C. 081 
[suit for rent], 

(e) Arunachala v. Vythialinga (1883) 0 Mad 

27 [ripht to drain water of plaintiH's 
villat(e through defendant’s village] ; Mil. 
Sadik V. Khedan Lai (1910) 1 Pat. B.J. 
154, 36 I.C. 197, (’10) A.P. 2,51 {suit to 
eject trespasser]. 

(/) Kaitusheri v. Vallotil (1881) 3 Mad. 234 
[against lessees for possession] ; Balkrishna 


V. of Mahai {1880). 10 

Bom. 32 (to remove encroachment — suit 
by a coparcener] ; Ilari (lopal v. Gokaldas 
(1888) 12 Born. 158 ['suit in ejectment] ; 
Balkrishna v. Moro Krishna (1897) 21 
Bom. 154 [suit In ojcctinent]; Kashinaih 
V. Chimnaji (1900) 30 Bom. 477 [declara- 
tion of right to immoveable property] . 

V. Kolandareliu (1900) 23 Mad. 

190 [ditto]. 

(y) v Basangoufia (1927) 54 

I.A, 122, 51 Bom. 450, 101 I.C. 44, (’27) 
A.PC. 56. 

(A) (1911) 38 I.A. 45, 52, 33 Ail. 272. 277, 9 I.C. 
739, 

(t) Kattusheri v. FrtWofii (1881) 3 Mad. 234. 

(i) ,4ntnacAa/a v. Vylhialinga (1883) 6 Mad. 27. 


S.25] 



296 


HINDU LAW. 


S. 251 


The aona are not necesaary parties to a suit brought against the father for possession 
of joint family property sold by him {k). A dooroe in a suit would bind all the members 
of a joint family even though some only were parties, if the interest of those who are not 
parties are sufficiently and substantially represented by the others and if the common 
title of all is affected (/). 

As to suits on mortgage, see the Code of Civil Procedure, 1908, 0. 34, r.l. 

(5) It seems that the manager of a joint Hindu family 
may sue or be sued as representing the family in respect of a 
transaction entered into by him as manager of the family or in 
respect of joint family property, and that a decree passed 
against him in such a suit would bind all other members of the 
family if, as regards minors, he acted in the litigation in their 
interest (m), and, as regards adults, with their consent. The 
consent need not be express ; it will be implied if they do 
not come and apply to be joined as parties to the suit (n), 
but not if they applied to be made parties in. order to conte.st 
the manager’s action (o). In Lingangoivda v. Basangoioda (p), 
their Lordships of the Privy Council observed as follows : — 
“In the case of a Hindu family where all have rights, it is 
impossible to allow each member of the family to litigate the 
same point over and over again, and each infant to wait till 
he becomes of age, and then bring an action, or bring an action 
by his guardian before ; and in each of these cases, therefore, 
the Court looks to Explanation 6 of sec. 11 of the Code of 
Civil Procedure, 1908, to see whether or not the leading 
member of the family has been acting either on behalf of minors 
in their interest, or if they are majors, with the assent of the 
majors.” Where a right to bring a suit was possessed by 
a father and other members then living and persons who were 
born later had also acquired the right before the right is 
barred by limitation the right will continue up to 3 years after 
majority of the youngest of the sons [q). 

(6) A coparcener, who is not the managing member, is 
not entitled to sue alone as representing the family. 

In Alagappa t. Vellian (r) the plaintiff who was a inember of a joint family entered 
into a contract with the defendant in his own name^ whereby he appointed the defendant 
as manager of the family business in Moulmein. The plaintiff sued the defendant for 

(o) Motilal V. Lalchand (1937) Nag. 362, 172 
I.C. 192, (’37) A.N. 121. 

(p) (1927) 54 I.A. 122, 125. 61 Bom. 450, 453, 
101 I.C. 44, (’27) A.PC. 66. 

(?) Avdes Kumar v. Zakaul Bussain (1944) All. 
612. 

11- "" - ' ^ I (1895) 18 Mad. 33. 


(fc) uu ran jjitta v. t^onnar Ham 11927) 8 Lah. 

693, 104 I.C. 202, (’27) A.L. 362. 

{1) Eishan Lai v. Ram Chandar l.L.E. (1944) 
All. 338. 

(?») V enkatnarayana v. Somarazu (1937) Mad. 

880 (F.B.), 171 I.C. 101, ('37) A.M. 610. 
(n) See Quravavua v. Datalrava n904\ 2ft ‘Rom. 



PARTIES TO SUITS. 


297 


damages for breach of the contract of service. The Madras Court held that the plaintift 
alone was not entitled to sue. As to this case their Lordships of the Privy Council 
observed as follows in Kishen Parsliad v. Hat Narain Singh (a) ; — 

“ The decision in the ease of Alogappa v. Vellian cited by the respondents may 
be supported on the ground that the single plaintiff in that case was not shetvn to be the 
managing member of the family ox to be the only partner or proprietor of the business with 
which the litigation was concerned. Their Lordships think, however, that the proposition 
thero laid down to the effect that the manager cannot sue without joining all those 
interested -with him, if literally construed, goes too far.” 

Where a promissory note was taken by a father, the son cannot sue on it during the 
father’s hfe-time without proof of renunciation by the father amounting to civil 
death («). A suit was filed by all the members of the joint family on a promissory note 
executed in favour of one of the members. The defendant denied that the family was 
joint and contended that the suit was not maintainable. The court held (1) that the 
family was joint; (2) the suit should be allowed to proceed by an appropriate 
amendment of tlie description of the plaintiffs and (3) in any event the suit was 
maintainable (u). 

(7) Where a joint family carries on a business, tbe 
members of tbe family wbo are minors and who are not shown 
to have been admitted into the trading firm or to have taken 
any part in the business or exercised any control therein, need 
not be joined as plaintiffs in a suit to recover moneys due to 
the family trading firm («). A Hindu joint family trading 
concern even when it carries on business under an assumed 
firm name may be sued in that name in respect of matters 
connected with the business carried on under that name and 
decree obtained in that form is valid (w). 

(5) Death of manager . — On tbe death of the manager 
pending a suit or appeal to which he is a party as repjesenting 
the joint family, the coparcener succeeding him as manager 
may he brought on the record, and the suit or appeal pro- 
ceeded with. It is not necessary to bring his sons on the 
record {x). Where one manager obtained a decree and, after 
realising . a portion of the amount, disappeared, the next 
manager of the family is entitled to he brought on the record 
for the purpose of continuing the execution proceedings (y). 

(SA) Where a promissory note is taken by a manager 
but by a subsequent arrangement between the coparceners he 


(s) (1911) 38 I.A, 45, 53, 33 AU. 272, 278, 
9 I.C. 739. 

(0 Krishnaji v. Banmaraddi (193^) 58 Bom, 
530, 153 I.C. 800, (’34) A.B. 385. 

(u) Cliaudri Atma Ram v. Umar AH (1941) 

Lah. 39, 190 I.C. 78, (’40) A.I. 250. 

(v) iwtcAtminenv. 5iva(1890)20Cal.349 ;Anant 

Ram V. Channu Lai (1903) 25 All. 378 ; 


Lalji V, Keshoioji (1013) 37 Bom. 340, 17 
I.C. 193. 

(w) Jamunadhar Poddar v. Jamunaraw Bhakal 
(1944) 2 Cal. 131. 

(a:) Atma Ram v. Banhumal (1980) 11 Lah. 69S, 
126 I.C, 800, (’30) A L. 661. 

(y) Narain Samp v. Daya Shanker (1038) All. 
425, 175 I.C. 590, (’38) A.A. 256’. 


S.251 



298 


HINDU LAW, 


Ss. becomes entitled only to a portion of tbe amount due under 
251, 252 recover only bis share (z). To such a suit the other 

sharers must be joined as parties. 

{9) As to suits on promissory notes signed by the manager 
alone, see sec. 240 (4). 

llluslTotions. 

(1) L and R, two brothers, constitute a joint family. Tho joint family carries on 

business as money-lenders in tho name of 7f.C. S borrows moneys from time to time 
from the firm. Then R dies leaving a minor son. .\fter R'a death there are further 
dealings between the firm and 5. An account of tho dealings is made up, and S passes 
a promissory note to the firm of R.C. for Rs. 12,000. L, the surviving brother, sues 
5 upon the note. L had three minor sons at the date of the suit, and one son was bom 
to him after the institution of the suit. It is not proved that either the minor son of R 
or the minor sons of L were admitted into the family firm. None of them is a necessary 
party to the suit ; Lutchmanen v, Siva (1899) 26 Cal. 349, 355. Sale, J., said : “ Decrees 

obtained in such suits by or against the managers of the business will be presumed to 
have been obtained by or against them in their representative capacity, and will be 
binding on the whole joint family.” 

(2) If in the case put above L and R were both dead at the date of the suit, all the 
sons of L and R must be joint as plaintiffs to the suit : Kalidaa v. Nathu (1883) 7 Bom. 
217. 

r 

252. Adding new plaintiff and limitation.— copar- 
ceners who ought to have been joined as plaintiffs to a suit 
are not made parties to tbe suit, the Court may order that they 
be added as parties. But if the suit as regards them would 
then be barred by limitation, the whole suit must be dismissed 
as time-barred (a). 

It has been held by tbe High Court of Bombay, that 
where a suit is brought by the manager of a joint family as 
representing the family (in that case the suit was for recovery 
of possession of family property) the question of the right of a 
manager to sue in that capacity is rather one of authority, 
if the other co-sharers are adults, and that the right to insist 
on the other coparceners being brought on the record is for 
tbe benefit of the defendant so as to insure himself against 
further litigation and is therefore dependent on the objection 
being taken at an early stage, the objection on the score of want 
of authorization being one of a character which it would clearly 
be open to tbe defendant to waive. If tbe defendant takes the 
objection to non- joinder of parties at a late stage of tbe suit, 

(z) Oopalu rUlai v. Eothandaram Ayyar (1934) 

57 MaJ 1082. 153 I C. 916, (’34) A.M. 529. 

(a) Kalxdas v. Hiuthu (1883) 7 Bom. 217 ; /{am- 
scinikv. Uam LaU(l^Sl) 6 Cai.815 ;.5fe»Aan 


V. Veera (1909) 32 Mad. 284, 4 I.C. 38 ; 
Ginmr v Mukbiinessa (1910) 1 Pat. L.J. 
468, 30 I.C. 542. ('16) A.P. 310. (Limita- 
tioa Act. 1008. s. 22 ’ 



DECREE AGAINST MANAGER. 


299 


the objection may be disregarded and the suit proceeded Ss. 
with (6). The same view has been taken by the High Court of 
Allahabad (c). The High Court of Calcutta has held, purport- 
ing to follow the Bombay decision, that the addition even of 
a minor coparcener after the expiry of the period of limitation 
as plaintiff to a suit on a mortgage is not fatal to the suit (d) 

lUustrcUion, 

A and B are members of a joint family which owns a house in Bombay. A 
alleging that C is in wrongful occupation of the house, alone sues C to recover possession 
of the house. The suit is instituted on January 1, 1911. The last date for instituting 
the suit is August 15, 1911. The suit comes on for hearing on 1st September 1911. 

C contends at the hearing that 5 is a necessary party to the suit. Here B is obviously 
a necessary party to the suit, and if he were to be added as a plaintiff the suit as regards 
him would be deemed to have been instituted on that date [this Indian Limitation Aot,- 
1908, sec. 22], and this would clearly bo after the expiration of the period of limitation for 
instituting the suit. The suit must therefore be dismissed. But if A was the manager 
and B was an adult at the date of the suit the Court could direct B to be joined as a plain- 
tiff even after the expiry of the statutory period unless G objected to B^s non-joinder 
at an early stage of the proceedings : Guruvayya v. Daialraya (1904) 28 Bom. 11. 

It will be seen from what is stated above that the question as to who should be 
joined as plaintiffs, dealt with in the preceding section is important because of the 
provisions of sec. 22 of the Indian Limitation Act, 1908. 


253. Decree against manager and res judicata.— A decree 
passed against the manager of a joint family as representing 
the family for a debt contracted by him for family neces- 
sities, or for the family business, or in respect of family proper- 
ties, operates as res judicata under the Code of Civil Procedure, 
sec. 11, Explanation 6, and is binding upon all members of the 
family including minors, and it may be executed against the 
whole coparcenary property, although the other members 
were not parties to the suit (e). It is otherwise, if the decree 
is against the manager 'personally. A decree, even for a family 
debt, passed against the manager personally, cannot be executed 


(6) Giirurayija v. Datairaxja (1904) 28 Bora, H 
fsiiit for possession of land], following 
rtari Gopal v. Gocaldas (1888) 12 Bom. 
158. 

(c) Pateshri v. Hudra Isarain (1904) 20 All. 528 

[suit for possession], s. c, on app. to P.C. 
sub-nominee Imdad Ahmad v. Pateshri 
Narayan (1910) 37 I.A. 00, 32 All. 241. 6 
I.C. 981. See also Cheta-n Singh v. Sartaj 
Singh (1924) 40 All. 709, 79 I.C. 1001, 
(*24) A.A. 908. 

(d) Tahkur Manx v. Dai Rani (1906) 33 Cal. 

1079, 1003. 

(e) Daulat Ram v. Mehrchand (1888) 15 Cal. 

70, 14 I.A. 187 ; htngangouxda v. Basan- 
gowda (1927) 54 I.A. 122, 51 Bora. 450, 
101 I.C. 44, (*27) A.PC. 50 ; Shea Shankar 


V. Jaddo Kunwar (1914) 41 I.A. 216, 30 
AU, 383, 24 IC. 604, ('14) A.PC. 136, 
affirming Jaddo Kioivoar y . Sheo Shankar 
(1911) 33 All. 71, 7 I.C. 902 ; Sheo Pershad 
V. Rajkumar (1893) 29 Cal. 453 ; Kishen 
Pershad v. Har Narain Singh (1911) 38 
I.A. 4.5, 33 All. 272, 9 I.C. 739 ; BaJdeo v. 
Mobarak (1902) 20 Cal. 083 j Kunjan v. 
SiAida (1899) 22 Mad. 461 ; ifori v. Jairam 
(1890) 14 Bom. 597 ; Bhana v. Ckundn 
(1897) 21 Bom. 610 ; Kashinath v. Chimnaj 
(1906) 30 Bom. 477 ; Sakkiaram v. Devji 
(1899) 23 Bom. 372. In Laxman 
Vinayak (1916) 40 Bom. 329, 33 I.C. 050. 
(T6) A.B. 262, it was suggested that the 
rule laid down in this section applied only 
if the manager was the father, but this 
view is not correct. 



300 


HINDU LAW. 


S. 253 against the whole coparcenary property ; it can he executed 
only against his interest in the property {/). 

It is not necessary, in order that a decree against the 
manager may operate as res judicata against coparceners who 
were not parties to the suit, that the plaint or ratten state- 
ment should state in express terms that he is suing as manager 
or is being sued as a manager. It is sufficient if the manager 
is in fact suing or is being sued as representing the whole 
family (g). See sec. 251 (5). 

lUustraiion. 

A, B, and C are members of a joint family. -4 and B are the managing members, 
.fl and B borrow Rs. 5,000 from P for the necessities of the famiti/. P sues A and B as 
managere, and obtains a decree against them as such. The decree may bo executed 
against the whole coparcenary proiierty including C’s interest therein, though C was 
not a party to the suit, and even if C was a minor : Bnldeo v. Mbb.zraJc (1902) 29 Cal. 5S3. 

Note. — In the case put above, P i.s entitled also to a personal decree against *4 and 
B, they being jjarties to the contract. Such a decree will enable P to proceed against 
the separait property also of *4 and B. But P is not entitled to a personal decree 
against C, even if C was an adult, for C was not a party to the contract. See s. 240. 

Suit by or a-gainsl manager in representative capacity . — A suit by or against the mana. 
ger will be deemed to bo one brought by him or against him ns re2)risenting the family if the 
circumstances of the case show that ho is the manager of The family and the property 
involved in the suit is family property (k). It is not necessary, where the manager is the 
plaintiff, that the plaint should state in distinct terms that he is suing as manager or 
where he is the defendant, that he is being sued as manager. 

Decree dismissing manager's suit. — ^The decree referred to in this section may be 
one dhsmissing the suit brought by the manager as plaintiff ('). 

Decree against father for injunction. — A and his son B are members of a joint family 

neighbour C sues A for an injunction restraining A from tethering cows and 
storing fodder close to C's premises, and a deci-ee is passed against A. The decree 
may bo executed after A’s death against his sou D, though the son was not a party to the 
suit(j). 

Order vnder sec. 145 of Criminal Procedure Code., 1898. — An adverse order passed 
under sec. 145 of the Criminal Procedure Code against the manager requiring him to 
deliver possession of a property to another person binds the other members of the family, 
though they were not parties thereto {k). 

dranath v. Sambhunaih (1928) 55 Cal, 210, 
304 I.C. 219, (’27) A C. 870. 

(A) Mulqaund Co-operatiie Credit Society v. 
Sfiiddnyappa Ishicarappa (1941) liom. 
f>82, 197 I C. 428, (’41) A.B. 385, 43 
Bom. L 11. 807. 

(t) See Linfiangaicda v. Basangoiida (1927) 54 
I. A. 122, 51 Bom. 450, 101 I,C. 44, (’27) 
A. PC. 5G. 

0) Mam Lai v. Kikahhai (1931) 33 Bom 
L.B. 1118, 134 I.C. 908, (’31) A.B. 482 ; 
Canesh v. ^^arayan (1931) 65 Bom. 709, 
134 I.C. 9G1, (’31) A.B. 484. 

(k) Tenknlafiomaraju v. Varahalaraju (1929) 52 
ilad. 787, 122 I.C. 17, (’30) A.M. 48. 


If) Viruraguiami/ia v. Saimidrala (1885) 8 Mad i 
208; Guruiappa v. Thimmu (1887) 10 ' 
Mad. 316 ; Sathuiayyan \. Mutfuuami 
(1889) 12 Mad. 325; Balbir Singh v. 
Aj’idhia (1887) 9 All. 142 ; Bam Dayal y. • 
Durga Singh (1890) 12 All. 209 ; Lachmi v, 
Kanga Lai and anr. (1894) 16 All. 449; • 
Mela MaL v. Gori (1922) 3 Lali. 288. 66 I 
I.C. 48.5, (’22) A.L. 200. 

{g) Uari Lai v, Munman Koer (1912) 34 All j 
549, 1.5 I.C. 126 ; Lalctiand v. Sheogottnd I 
(1929) 8 Pat. 788, 128 I.C. 331, ('29) A.P. ' 
741 ; Ham Kishany. Ganga Rnm 12 
Lah. 428, 133 I.C. 116, (’31) A.L. 559 ; j 
Pirthipal v. Bameshwar (1927) 2 Luck 1 
288, 99 I.C. 154, (’27) A.O. 27; Suren- \ 



ALIENATION. 


301 


254. Decree against father as ma,nager and res judicata.— 
A decree obtained against the father as manager of a joint 
family is binding upon his sons, if in the case of a minor sons 
he was acting in the former litigation on their behalf in 
them interest (/), and in the case of majors, with the assent of 
the majors. Such a decree operates as res judicata by virtue of 
the provisions of Explanation VI of sec. 1 1 of the Code of Civil 
Procedure (w). See sec. 251 (5). 

IV.— ALIENATION OF COPABCENABY PBOPEBTY. 

255. Who may alienate coparcenary property, — The 
following persons alone have power to ahenate coparcenary 
property so as to pass a good title to the alienee ; — 

(1) the whole body of coparceners, where they are all 
adults (n) ; 

(2) the manager, to the extent mentioned in section 242 ; 

(3) the father, to the extent mentioned in section 256 ; 

(4) a sole surviving coparcener in the circumstances 

mentioned in section 257. 

No other coparcener is entitled to alienate coparcenary 
property so as to bind the other coparceners unless he is 
authorized by them to do so (o). 

We are not dealing now with the power of a coparcener to abenate his ouni interest 
in coparcenary property. That subject is dealt with in secs. 258-260 below. 

256. Alienation by father.— A Hindu father as such has 
special powers of alienating coparcenary property which no 
other coparcener has. In the exercise of these powers — 

(1) he may make a gift of ancestral moveable fro-perty to 
the extent mentioned in sec. 225, and even of 
ancestral immoveable projherty to the extent men- 
tioned in sec. 226 ; 

(2) he may sell or mortgage ancestral property, whether 
moveable or immoveable, including the interest of his 
sons, grandsons and great-grandsons therein, for the 
payment of his own debt, provided the debt was an 
antecedent debt and was not incurred for imm oral 
or illegal purposes [sec. 295]. 


(0 V erikatanarayana v. Soimraju (1937) Mad. 

880 (F.B.) 171 I.C. 101, '('37) A.M. 610. 
(w) (1927) 54 I.A. 122, 61 Bom, 450, 101 I.C. 

44, (’27) A, PC. 56, supra. 

(n) Mahabeer Persad v. Ram'jad (1874) 12 Bcng. 
L.R. 90, 94. 


(o) Gurutappa v. Thimma (1887) 10 Mad. 316 ; 
Sheo Pershad v. Haheb Lai (1893) 20 Cal. 
453, 401 ; Krishna v. Erishnasami (1900) 
23 Mad. 597, 600 ; Pntloo Lai v, Eagubir 
Prasad (1934) 9 Luck. 237, 147 I.C. 540, 
(’33) A.O. 535. 


Ss. 

254-256 



302 


HINDU LAW. 


Ss. 

256, 2S7 


Except as aforesaid, a father has no greater power over 
coparcenary property than any other manager {q), that is to 
say, he cannot alienate coparcenary property except for legal 
necessity or for the benefit of the family [s. 242]. 

Thus a mortgage by the father for raising moneys for a speculative litigation, which 
is for his own benefit, is not for legal necessity adid, there being no antecedent debt, 
such a mortgage is not binding on the sons* shares (r). 

Where a father was converted to Christianity and aftenvards was reconverted to 
Hinduism a mortgage by him during the minority of his son does not bind the son’s share, 
as the father became divided from his son when he became a Christian and there could 
be no reunion with his son who was a minor ( 5 ). 

The father is in all cases naturally, and in the case of minor sons, necessarily, the 
manager of the joint family [sec. 23C]. As manager, he has the power to alienate 
coparcenary property, but only in the cases specified in s. 242 above. As father, he has 
power to alienate coparcenary property in the cases mentioned in the "present section. 
Beyond that, he has no power to alienate coparcenary property. 

257. Alienation by sole surviving coparcener.~(I) A 
person who for the time being is the sole surviving coparcener 
is entitled to dispose of the coparcenary property as if it were 
his separate property. He may sell or mortgage the property 
without legal necessity or he may make a gift of it. If a son is 
subsequently born to him or adopted by him, the alienation, 
whether it by way of sale, mortgage or gift, will nevertheless 
stand, for a son cannot object to alienations made by his 
father before he was born or begotten [sec. 270]. 

(2) As to dispositions by will, see s. 368 below. 


(3) When the immoveable property consists of raiyati 
interest in lands, a father, if he is unable to cultivate 
them, may surrender such interest and the surrender 
would be upheld unless it is shown to be a dishonest 
transaction intended to prejudice the sons (p). 


Illustration. 

A, B and C, three Hindu brothers, are members of a joint Mitakshara famil 3 ^ B 
and C die in A’s lifetime, leaving A as the sole surviving coparcener. A dies leaving a 
will whereby he bequeaths the coparcenaiy property to D, He leaves behind him a 
wife and a daughter. The will is valid as against the wife and the daughter. But if 
A’s wife was pregnant at the time of A’s death, and subsequently gave birth to a son, 
the son would take the coparcenary property by survivorship to the entire exclusion, 
of D. The right of the posthumous son to succeed by survivorship on the principle of 
relation back to the time of the father’s death stands on the same footing as that 


(p) Sh£Opra^ad Sahu v. Deo Charan Sahu (1934) 
13 Pat. 390, 151 I.C. 1&8, (’34) A.P. 212. 
{q) Chinnayya v, Peniinal (1890) 13 Mad. 51 ; 
Rayakkal v. Subbanna (1893) 16 Mad. 84 • 
Jiala V. Balaji (1898) 22 Dom 825; 
Ningracddi v. Lakshmaioa (1902) 26 Bom. 


163 (gift to a coiicubino) ; lioiiala v. 
Piilirat (1904) 27 ilad. 162. 

(r) liam Chandra v. Janq Bahadur (1926) 5 Fat. 

198, 90 I.C. 553. ('26) A.P. 17. 

(«) Vella V enkaiasubhayya v. Vella Venkatrant' 
ayya (1944) Mad. 33. 



ALIENATION. 


303 


of a son in esse at the time of the father’s death : Hanmant v. BhimachaTya (1887) 
12 Bom. 105, 109-110. 

It is a cardinal doctrine of the Mitakshara law that a member of a joint family 
cannot make a valid gift or bequest of his undivided interest in the coparcenary property 
so as to defeat the rights of the other members to take by suivivorship (s. 258 ). The 
only exception is that of a sole surviving coparcener to the extent mentioned in the 
present section. 

V.~ALIENATI0N OF UNDIVIDED COPARCENARY INTEREST. 

258. Gift of undivided interest.— According to the 
Mitakshara law as apphed in all the provinces, no coparcener 
can dispose of his undivided interest in coparcenary property 
by gift (i). He may, however, make a gift of his interest with 
the consent of the other coparceners (m). 

Sole survixing coparcener . — As to gifts by a sole surviving coparcener, see s. .257 
above ; as to gifts by a father, see ss. 2 25 and 226 abo ve. 

Separate and selj-acqnvF^-properiy .- — A coparcener may dispose of his separate or 
self-acquired property in any way he likes [s. 222]. 

259. Sale or mortgage of undivided interest— Bombay, 
Madras and the Central Provinces.— According to the Mitakshara 
law as administered in the Bombay and Madras Presidencies, a 
coparcener may sell, mortgage, or otherwise alienate for value 
his undivided interest in coparcenary property without the 
consent of the other coparceners (a). 

The. same rule applies to cases governed by the Mitakshara 
law as administered in the Central Provinces [w). 

260. Sale or mortgage of undivided interest— Bengal and 
U.P. — According to the Mitakshara law as administered in 
Bengal and the United Provinces, no coparcener can alienate 
even for value his undivided interest without the consent of 
the other coparceners (x), unless the alienation be for legal 


(«) Baba v. Timma (1884) 7 Mad. 357 [F.B.], 
Ponmisami'V. a 97*^ • 

Bamanna v. Fentafa (1888) 11 Mad, 246; 
Jioltala (11)04) 2V lVfiia^ 62. at 

page 166 '; Otiaram v. Jianu 11 

Bom. H,C. 76: v. Yamuna- 

bai (1875) TB Bom. H.C. 229 ; Kala v. 
Barsa (1895) 19 Bom. 803. 

(u) Tagore v. Tagore (1872) 9 Bcng. L U. 377, 
396, L.R. Sup. Vol. 47, G6. 

(r) Tiikaram v. Ramchandra (1869) 6 Bora. 
H. C. A. C. 247 ; Vasudeu v. Vetikaiesh 
(1873) 10 Bom, H. C, 139 ; Pakirapa v. 
Ohanapa (1873) 10 Bom. H.C. 162 ; Pandu 
V. Goma (1919) 43 Bom. 472, 50 I C. 765, 
(’19) A.B. 84 ; Villa Batten v. Yaimnamma 
(1874) 8 M ad. j l.C. 6 ; Ahjyagari v. 
Aiyyagari -(-ttfirZf 25 Mad. 690, 703 ; 
Nanjunda Sivami v. Kanaqarajn (1919) 
42 Mad. 154, 49 I.C. 666, ('19) A.M. 500 
(settlement on daughter in cousidcration 
of marriage] ; Lakshman v. Ramchandra 
(1880) 5 Bom. 48, 61, 7 I.A. 181 ; Pandu- 


rang v. Bhagwandas (1920) 44 Bom. 341, 
55 I.C. 544. (’20) A.B. 341 ; Spraj Bansi. 
Koer V. Sheo Persad (1879) 5 iW. HUT; 

6' LH. 88, iUl'n.UZ , Bas~ I 

Harain. Lai (1893) 15 All. 339, 351, 20 I.A. 
116-125. See also cases cited in foot- 
note (c) above. See also Subba v. FewAra- 
famjni (1915) 38 Mad. 1187, 1191, 30 I.C. 
933, (*15) A.M 740 [specific performance] 
(uj) Syed Kasum Jorawar Singh (1922) 49 
I.A. 358, 50 Cal. 84, 68 I.C. 573, (’22) 
A.PC. 353; Bhograj v. Nathuram (1917) 
37 I.C. 493, 12 ^-.L.R. 161, (’16) A.X. 25. 
(x) Madho Parshad v. JiTf.hrban Sitigh (1891) 
18 Cal, 157, 17 I.A. 194 ; Sadabart Prasad 
V. Foolbask (1869) 3 Beng. L.R.F.B R. 
31 ; Kah Shankar v. Nawab Singh (1909) 
31 All. 507, 3 I.C. 909 ; Balgobxnd Das v. 
Narain Lai (1893) 15 All. 339, 351, 20 I.A. 
116, 125 ; Manna Lai v. Kara Singh (1019) 
IPat.L.T 6,561.0 766, (’19) A.PC 108, 
Chandra Deo v. Mata Prasad (1909) 31 All, 
176, 1 I.C. 479 [F.B.]. For other cases, 
see a. 269 below. 


Ss. 

257-260 



304 


HINDU LAW. 


Ss. 

260, 261 


necessity [s. 242], or for payment by a father of antecedent 
debts [s. 295]. The consent of the other coparceners is 
necessary even if the ahenation is made in favour of a 
coparcener {y). 

The same rnle applies to cases governed by the Mitakshara 
law as administered in Behar and Orissa ( 2 ;), the Punjab (o), 
and in Oudh (6). 

The alienation is not void but voidable [vide s. 269 [1] 
and 270 (4) ] (c). 

According to tI\o strict theory of the llitakshara law, caeli coparcener has a pj'o- 
prietary interest in the ichole of tho coparcenary property. No coparcener, therefore, 
can alienate his interest in the property without tho consent of tho other coparcener.s. 
This rule has been strictly applied in tho United Provinces and in Bengal to cases 
governed by the llitakshara law. But the rigour of the rule has been relaxed in favour 
of alienees /or raiiie in the Bombay and Madras Presidencies [s. 2G1] and in favour of 
purchiisers at an execution sale throughout British India [s. 2S9]. 

Lease .- — A lease stands on the same footing as a sale or mortgage (d). 


261. nights of purchaser of coparcener’s interest.— 
According to the Mitakshara law as applied in Bombay and 
Madras, a coparcener 'may ahenate his undivided interest in the 
entire joint family property, or his undivided interest in a 
specific property forming part of the joint family properties. 
But he has no right to alienate, as his interest any specific 
property belonging to the copracenary, for no coparcener can 
before partition claim any such uroperty as his own : if he 
does alienate, the alienation is valid to tne extent only m 
his ■ nnrn iate rest m the alienated propert y {ef. According to 
the Mitakshara law as it prevails in Bengal and the United 
Provinces no coparcener can alienate even his oivn undivided 
interest in the coparcenary property without the consent 
of the other coparceners. If he does so, the alienation is void 
in its entirety ; it is not vahd even to the extent of his own 
interest in the property [s. 269]. But the Mitakshara law as 
administered in the provinces allows the sale of the undivided 
interest of a coparcener in execution of a decree against him [s. 
289]. The present section deals with the rights of the purchaser 
of a speci&c property, ox of a coparcener’s interest in the specific 
property, as to possession and partition, whether the property 


(y) ChandcT v. Damj>ot (1894) 10 All. 300. 

( 2 ) Jwala Prasad v. Maharajah Prolab (1916) 1 
Pat. L.J. 497, 37 I.C. 184, (’16) A.P. 203 , 
Amar Dayal v. liar Pertihad (1920) & Pat 
L.J. 605, 68 I.C. 72, ('20) A.P 433. 

(o) Piare v. Ham (1912) P.U. Ko. 2L p. 75, 11 
I.C. 443 ; Ralla Ham v. Alma Ham (1033) 
14 Lah. 584, 150 I.C. 184, ('33) A.L. 343. 
(6) (1891) 18 Cal. 15?, 17 1. A. 194, supra; Anifraj 
V. Ham Hup (1931) 6 Luck. 158, 127 I C 
38, ('30) A.O. 284 ; PuUoo Lai v. liagubir 


Prasad (1934) 0 Luck. 237, 147 I.C. 540, 
(■33) A.O. 535. 

(c) Kfiarag Narainv. Janki Bai(lQ27) 10 Pat. 

230, 100 I.C. 900, (’37) A.P. 540. 

(d) Jadu V. Abdul (1911) 16 C.W.N. 93, 11 I.C 

892. 

(e) Villa Butlen v. Yamenamma (1874) 8 Mad. 

H.C 6, II : Venlalachella v. Chinnaiya 
(1875) 5 Mad, H.C. 100, 171 ; Vuixl 
Jian V. Hakamrhand (1886) 10 Bom. 
303 Lmortgagp], 



ALIENATION. 


305 


has been sold by private treaty or in execution. Almost aU 
the cases dealt with in this section relate to the sale of a specific 
property or the sale of the undivided interest of a coparcener 
in a specific property. The principles laid down in those 
cases apply mutatis mutandis to the case of a sale of the un- 
divided interest of a coparcener in all the joint family properties. 

(1) Riijht to joint possession in Bengal, United Provinces 
and Madras . — As regards the purchaser’s right to joint posses- 
sion the Bombay decisions differ in certain respects from 
those of the other High Courts. We shall deal first, with the 
decisions of High Courts other than Bombay, and next, with 
Bombay decisions. 

The purchaser of the undivided interest of a coparcener 
in a specific property — 

{i) at a sale in execution in Bengal (f) and the United 
Provinces, or 


(ii) at a private sale or a sale in execution in Madras {g), 
does not acquire a right bo joint possession with the other 
coparceners. Such a purchaser acquires merely the right to 
compel a partition which the coparcener whose interest he 
has purchased might have compelled, had he been so minded, 
before the sale of his interest took place. That right can only ' 
be enforced by a suit for a general partition to which all the ’ 
coparceners must be jomed as parties [h). The purchaser may 
in such a suit ask the Court to allot to his vendor the specific 
property sold to him, and the Court may allot that property 
to him if the interest of the other coparceners will not be 
prejudiced thereby [sub -sec. 3], 

Where the purchaser has not obtained possession, but 
claims the whole property as his own, the non-alienating 
coparceners may sue him for a declaration that he is entitle 
to no more than the undivided interest of the alienating 
coparcener. The proper decree to be passed in such a suit 
would be an order declaring that, by virtue of the sale, the 


(f) Deen Daval v. Juodeep Narain (1877) 3 Oal. 
1^, m 4 IX . iSlu aj BarJi Roer 
V. Sheo Pershad (1880) 5 Cal. 148, 174, 6 
I.A. 88 ; Rardi Narain v. Ruder Perhash 
(1883) 10 Cal. 626, 636-637, 11 I.A. 20. 
ig) ^iaharaja of BobbUi v. Venkataramannda 
(1916) 39 Mud. 265, 207, 26 I.C. 685, 
(’15) A.M. 453; Manjaya ■?. Sfuinmuga 


(1915) 38 Mad. 684, 22 I.C. 555, ('14) A.M. 
440 [private sale]. 

(A) Vitla BuUen v. Yamenamma (1874) 8 Mad. 
- H. C. 0. The executini; Court has up 
power to direct a. partition. Yelumalai 
V. Srinvasa (Ifl^ 29 Mad. 294 ; Brii Lai 
V. Duma (1920j^ Lah. 134, .50 I.C. 254, 
(20) A.L, 159. 



306 


HINDU LAW. 


261X1) purchaser acquired only the undivided share of the alienating 
coparcener in the property with such power of ascertaining 
the extent of such share by means of a partition as the alienat- 
ing coparcener possessed and confirming the possession of the 
other coparceners subject to such p roceedin gs as tbft pnrcba.ser 
may take to enforce his rights (i). If the purchaser has 
obtained possession, the non-alienating coparceners, are entitled 
to sue for and recover possession of the ivhole of the property 
for the benefit of the joint family including the vendor. The 
purchaser is not entitled in such suit to an order for partition 
either of the specific property sold to him or of the joint 
family properties in general ; he must, if he wants to realize 
his vendor’s interest, bring a suit of his own for a general 
partition. Where a suit therefore is brought by the non- 
, aUenating coparceners for possession, the proper decree to be 
passed would be an order directing the purchaser to deliver 
possession to the plaintiffs of the whole property, and declaring 
that the purchaser is entitled to a declaration that he has 
acquired the undivided interest of his vendor in the property 
and that he is entitled to take proceedings to have that interest 
ascertained by partition (j). But to protect the purchaser 
a further direction is added that the execution of the decree, 
so far as it directs the purchaser to deUver possession to the 
plaintiffs, be stayed for a specified period, and if before the 
expiry of that period the purchaser brings a suit for a general 
partition against the plaintiffs then the stay should continue 
until the disposal of that suit, but if no such suit is brought 
within that period, then the stay of execution will stand 
^cancelled (k). In a recent case (1), however, the Madras High 
Court held, relying upon the observations of the Judicial 
Committee in Ramkishore v. Jainarayan (m), that when relief 
by way of general partition can be conveniently given to 
the purchaser in a coparceners’ suit for possession, as where all 
the coparceners are parties to the ^t and the Court is seized 
of the whole matter, the purchaser should not be driven to a 


(l) fc/qp Kner v Rhi>n Perffhad^ MSHOi 

<-^'~TCal. 148, 174-17ji T> l-a. ^SS. 


(j) Deen Dayal v. Jundeep Karain (1877) 3 
198, 209, 4 I, A. 247 ; Baboo o-urdey 
Narain v. Ruder Perkash (1883) 10 Cal. 
626, 637, 11 I. A. 26 ; Subba v Krishna- 
machari (1922) 4,1 Mad. 449, 460-463, 68 
I.C. 869, (’22) A.M. 112 [private sale] ; 
Kandnmmy v, Velayutha (1027) 50 Mad. 
320, 328, 96 I C 993, (’20) A.M. 774 
[private sale] ; Medni Prasad v. Nand 


Keshwar (1923) 2 Pat. 386, 85 t C. 1014, 
(’23) A.P. 451 [sale in execution], 

(i) Kandasamy v. Velayutha (1927) 50 1\Iud. 
320, 328, 96 I C. 093, (’26) A,.M. 744 ; 
ManmanduH v. Valabhdas (1910) 43 Bom. 
17, 25-26, 46 I.C. 133, (’18) A.B 101 
(/) Ramasami v. Venkatarama (1923) 46 Mad. 
815, 75 I.C. 406. (’24) A.M 81 [private 
Hale]. Sec also Sellappa v. Masa (1924) 
47 Mad. 79, 70 I.C. 1018, (’24) A M. 297. 
(m) (1913) 40 Cal. 906, 40 I.A, 213, 20 I.C. 958. 



ALilJSJNAXlOiN. 


3UV 


separate suit [ill. (a)]. Referring to this case the same High 
Court said in a later case {n) : “ The decision in 46 Mad. 815 
applies to cases where all the facts are before the Court which 
would enable it to allow an alienee to retain the property and 
such a suit is practically a suit for partition.” 

Ri^M to joint possession in Bombay . — The following 
principles have been laid down with regard to the rights and 
remedies of the purchaser and the non-alienating coparceners, 
whether the sale be one private contract or in execution of 
a decree (o) : 

(1) If the purchaser is a. stranger, and lias not obtained 

possession, he should not be given joint possession 
with the other coparceners, but should be left to 
his remedy of a suit for general partition (p). 

(2) If the purchaser has obtained possession, the non- 

alienating coparceners are entitled to joint possession 
of the property with him, and if they sue for it, the 
Court must decree joint possession to them (q). The 
reason given is that the purchaser cannot, by obtaining 
a possession to which he was not entitled without 
partition, force on the other coparceners the necessity 
of bringing a suit for partition (r). The proper decree 
to pass in such a case is one placing the plaintiffs- 
coparceners in joint possession with the purchaser. 
A mere declaration of the plaintiffs’ right to joint 
possessi on is not enough (s). 

(3) Further, if the purchaser has obtained possession, the 

non-alienating coparceners may sue for recovery of ' 
possession of the whole of the property sold to him, in 


(n) (1927) 50 Mad. 320, 324, 96 I.C. 093, (’29) 

A.M. 774 [private sale], supra. 

(o) Bhau V. Budha (192G) 50 Bora. 204, 200, 

96 I.C. 166, (’26) A.B. 309 [where the 
earlier cases are collected]. 

(p) Pandurang v. Bhaskar (1874) 11 Bonu^.C. 

72; Knshnaji v. Sitaram (1881) in, 
496 ; Balajt v. Ganesh (1881) 5 Bom, 499 ; 
Panda v. Goma (1919) 43 Bora. 472, 50 
I.C. 765, (’19) A B. 84; Ishrappa v. 
Krishna (1922) 46 Bom. 925, 931, 67 I.C. 
833, (’22) A.B 413. 

(q) Mahabalya v. Txmaya (1874) 12 Bora. H.C. 

138 [coparceners’ suit for joint posses- 
sion] ; Babaji v. Vasudsv (1876) 1 Bom. 
95 [ditto] ; Kallapa v. Venkatesh (1878) 
2 Bora. 670, at p. 678 ; Dugappa v, 
Venkatramnaya (1881) 5 Bom. 493 [suit 
by coparceners for possession of entire 
property — held entitled only to joint 


possession with purchaser] ; Patil Hari v> 
iIaA:amc/mnd(1886) 10 Bora. 303 [mortga- 
gee with possession from one coparcener 
dispossessed by purchaser at a sale in 
execution of a decree against another 
coparcener — held mortgage entitled to 
joint possession vi,th purchaser] ; Nana 
V. Appa (1896) 20 Bom. 627 [suit by 
purchaser for exclusive possession — ^joint 
possession decreed] ; Naranbhai v. Ran- 
ghod (1902) 26 Bom. 141 [purchaser’s 
suit for exclusive possession — suit dis- 
missed by trial j udge — d ecree reversed and 
suit remanded for inquiry whether 
purchaser should be awarded joint 
possession on the merits of the case] ; 
Bhxku V. Puttu (1900) 8 Bom. L.R. 99, 
105-106. 

(f) (1906) 8 Bom. L.R. 99, 100, supra. 

(ff) (1902) 26 Bom. 141, 145, supra. 


\. 261 ( 1 ) 



308 


HINDU LAW. 


S. 261 (1) 


other words, they may sue for exclusive possession. 
But the Court is not bound, as in Madras, to eject 
the purchaser and decree exclusive possession to the 
plaintiffs, and it may in its discretion declare that the 
purchaser is entitled to hold the property until 
partition, as a tenant-in-common with the other 
coparceners ; in other words, the Court may in a 
proper case allow the purchaser to remain in joint 
possession with the plaintiffs. Each case as to the 
propriety or otherwise of allowing the purchaser 
joint possession should be decided on its own facts ((). 
Thus the Court may not eject the purchaser if he is a 
relative of the parties and has long been in possession, 
but may allow him to continue in joint possession 
with the other coparceners. If they • do not like 
joint possession with the purchaser, their remedy 
lies in suing for a partition (w). If the case is one 
in which joint possession should be allowed, the 
proper decree to pass is one placing the plaintiffs in 
joint possession with the defendant purchaser. If the 
case is one in which joint possession should not be 
allowed, the proper decree to pass would be an order 
directing the purchaser to deliver possession of the 
ivhole property to the plaintiffs, and declaring that the 
purchaser has acquired the undivided interest of his 
vendor in the property and that he is entitled to take 
proceedings to have that interest ascertained by 
partition, with a further direction that the execution 
of the decree be stayed for a specified period, and if 
before the expiry of that period the purchaser brings 
a suit for a general partition against the plaintiffs 
then the stay should continue until the disposal of 
that suit, but if no such suit is brought within that 
period, then the stay of execution will be cancelled {v). 


Difference betiveen Madras and Bombay vieivs . — The main 
point of difference between the Madras and Bombay High 
Courts' is that while in Madras the purchaser is not entitled 
in any case to joint possession before partition, in Bombay 


(0 Bhau V. Budha (1927) 50 Bom 204, 90 I.C. I 
166, (’26) A.B. 309, and the cases cited > 
in f. n. iq) above. I 

(M) (1927) 50 Bom. 204, 96 I.C. 166, (’26) A.B. 1 


309, supra, 

(v) nanmandas v. Valabhdas (1919) 43 Bom. 
17, 25-26, 46 I.C. 133, (’18) A.B. 101. 



ALIENATION. 


309 


the Court may in its discretion award joint possession to him. 
The reasons for this difference are as follows : — 

(a) According to the Bombay decisions, the purchaser 
from a coparcener is a tenant-in-common with the 
other coparceners (w). A similar view was taken by the 
High Court of Madras in some of the earlier cases, but 
that view has since been disapproved, and it has been 
held that the purchaser is not a tenant-in-common, but 
has only an equity to enforce his rights by partition (a:). 

(b) The Madras High Court {y) has interpreted the judg- 
ments of the Judicial Committee in the under-men- 
tioned cases {z) as laying down the broad proposition 
that the purchaser in possession is Hable to be ejected 
at the instance of the non-abenating coparceners. 
Commenting on this Fawcett, J., said in a recent 
Bombay case that they were all cases from Bengal 
where one coparcener has not authority, without the 
consent of his coparceners, to alienate even his own 
undivided interest in coparcenary property, and that 
the Privy Council decisions do not amount to saying 
that in no case can the Court properly allow a stranger 
purchaser to remain in possession with the non-alienat- 
ing coparceners (a). 

(2) Right to partition . — In Bombay (6) and Madras (c), 
the purchaser of the undivided interest of a coparcener in 
a specific property belonging to the joint family is not entitled 
to a partition of that property alone, for his vendor himself 
could not have claimed it, unless the other coparceners consent 
to it. He can only enforce his rights by a suit for a general 
partition. In Allahabad (d), and in Calcutta (e) it has been 
held that the purchaser is entitled to a partition of the specific 
property without suing for a general partition, but these de- 
cisions are of doubtful authority. 


(to) See MaJiabalaya v. Tiv%aya (1875) 12 Bora. 
H.C. 138, 140, which is the first Bombay 
case on the subject. 

{x) Manjaya v. Shimmuga (1915) 38 Mad. 684, 
22 I.C. 555, (’14) A.M. 440 ; Maharaja of 
Bobbxli V. V enkatramanjulu (1910) 39 
Mad. 265, 25 I.C 585, (*15) A.M. 453. 

(y) (1916) 39 Mad. 265, 268-269, 25 I.C. 585, 
(’15) A.M. 453, supra. 

(Z) Rijnfti Rner V. T^At-shnA /Iftani 

^Cal. 148, 6 i:A. bb ; Uardi Narain v. 
Ruder Perkash (1883) 10 Cal. 626, 11 I. 
A. 26 ; Ramkishore v. Jainarayan (1913) 
40 Gal. 966, 40 I.A. 213, 20 I.C. 958. 


(a) Bhau v. Biidha (1926) 50 Bom. 204-207-209, 
96 I.C. 166, (’20) A.B. 309, 

(5) XJdaram v. Ranu (1875) 11 Bom. H.C. 76 ; 
Murarrao v. Sitaratn (1899) 23 Bom. 184 ; 
Shivmurleppa v, Virappa (1900) 24 Bom. 
128; Inhrappa v. Krishna (1922) 40 Bom, 
925, 67 I.C. 833, (’22) A.B. 413. 

(c) Venkatarama v. Meera (1890) 13 Mad. 275 ; 

PiUani V. Masakoan (1897) 20 Mad;.243 ; 
Manjaya v. Shanmuga (1915) 88 
684, 22 I.C. 655. ^ 

(d) Ramvtohan v. hfulchand (1906) 28 All. 39. 
(c) Tarinicharan Chakrabarti v. Debendrala Do 

(1935) 62 Cal. 655. 


S. 261 
( 1 ). ( 2 ) 



310 


HINDU LAW. 


S.261 

( 2 ). ( 3 ) 


The non-alienating coparceners, on the other hand, are 
entitled in Bombay (/), Madras (g), and Allahabad {h), to sue 
the purchaser for partition of the alienated property without 
bringing a suit for a general partition. But one of several 
non-alienating coparceners cannot sue the purchaser for his 
own share of the alienated property (i). 

Where a suit is brought by the non-alienating coparceners 
against the purchaser for partition only of the property 
ahenated, as they are entitled to do, the purchaser is not 
entitled in that suit to counter-claim for a general partition. 
He must bring a suit of his own for a general partition {j). 

Where a suit has been brought by the non-alienating 
coparceners against the purchaser for partition only of the 
property alienated, and an unconditional decree is passed for 
partition of the alienated property and for delivery of their 
share to them, the share so delivered becomes the separate 
property of the non-alienating coparceners (k). But it would 
continue as joint if the relief granted to the non-alienating 
coparceners is made conditional on their assenting to the 
results of a suit for general partition which the alienee may 
offer to bring (1). 

The share allotted to the non-alienating coparcener is his separate property as between 
him and the alienating coparcener, but not as between him and his male issue. 

(3) Equitable rights of purchaser on partition . — The 
alienee of a specific property or of the undivided interest of a 
coparcener in such property has on a general partition an 
equitable right to have that property (m), or his alienor’s share 
in that property (u), as the case may be, assigned to him if 
it could be done without injustice to the other coparceners. 
But there may be equities between the coparceners or liabilities 


if) }Ianmand<is v, Valabhdas (1919) 43 Bom. 
.17, 26, 46 I.C. 133, (’18) A.B. 101 ; Naro 
Gopal V. Para Gauda (1917) 41 Bom. 347, 
305, 39 I C. 23, (*16) A.B. 130. 

(^) Venhaiachelia v. Chinnaya 0870) 5 Mad. 

H. C. 166 ; Chinna v. /S'urtya (1882) 5 
Mad. ly6 , Subratnanya v. Padmanabfia 
(1896) ]9 Mad. 267; Iburamsa v. Them- 
vertkatasami (1911) 34 Mad. 260 (t'.B.), 
7 I.C. 559 [suit by purchaser Irom non- 
alienating coparcener]. 

(A) Ram CAaran v. Ajudhia (1906) 28 All 50. 
(i) Shyam Sunder v. Jagamalh (1923) 2 Pat, 
925, 74 I.C. 758, (’23) A.F. 590. 
ij) Kandasainy v. Velayutha (1927) 50 Mad. 

320, 96 I.C. 993, ('26) A.M. 774. 

(it) Souri V. Pachia (1926) 49 Mad. 483. 91 

I. C. 868, (’26) A.M. 241. 

(1) See Ramktshore v. Jainarayan (1913) 40 


CaJ. 906, 40 I.A. 213, 20 I.C. 959 ; Uan- 
mandas v. ValabhduK (1919) 43 Bom. 17, 
46 I.C. 133, (’18) A.B. 101. 

(m) Pandurang v. Bhaskar (1875) 11 Bom. H.C. 

72; Udarain v. Ranu (1875) 11 Bom. 

H. C. 76 ; Aiyyagari v. Aiyyagari (1902) 
25 Mad. 690, 718-719 [F.B.] ; Chinnu 
PUlai V. Kalimuihu (1912) 35 Mad. 47, 
62, 9 ru. 59C [F.B.J; Bhulobhai v. 
Lala Dhula (1922) 46 Bom. 28, 64 T. 
C. 115, (’22) A.B. 137; Kandasamy v 
Vclayutha (1927) 50 Mad. 320, 324, 96 

I. C. 993, (’26) A.M, 774 ; Gurlingappn 
V. Sabu (1931) 33 Bom. L.R. 141, 131 
I.C. 880, ('31) A.B. 218. 

(n) Venkalarama v. Meeta (1890) 13 Mad. 275, 

(1902) 25 Mad. 600, 718-719 [F.B.], supra ; 
Manjaya v Shanmuga (1915) 38 Mad. 684 
22 I.C. 555, (’14) A.M. 440. 



ALIENATION. 


311 


attaching to the ahenor’s share which may render it inequi- 
table or impracticable to do so (o). In such a case the ahenee 
is entitled to recover from his alienor property of an equivalent 
value out of the properties allotted to the alienor for his share 
in substitution of the property alienated (p). In making 
adjustments, the court will take the value of the properties 
at the time of the division and not at the time of the sale {q). 
But a purchaser at a Court-sale has no such right, there being 
no warranty of title at such a sale (r) ; and it has been held 
that a vendee from the first purchaser also has no such right, 
and that his only remedy is to sue his own vendor (that is, 
the first purchaser) for damages for breach of warranty, the 
reason given being that to hold otherwise would be to give 
to such vendee property which he never bargained for (s). 
But this argument, it is submitted, applies equally as between 
the alienor and the immediate purchaser from him. 

(4) Right to sue for partitwn even after vendor's death . — 
The purchaser of the interest of a coparcener is not bound 
to sue for partition in the hfetime of the coparcener. He may 
sue after his death. The right which he has to a partition is 
not lost by the death of the coparcener (<). 

(5) Share to which purchaser is entitled on partition. — The 
share to which an alienee is entitled on partition is the share 
to which the ahenor was entitled at the date of alienation, and 
not at the date when the alienee seeks to reduce his interest 
into possession (m) [ills, (c) and (d)]. But this principle apphes 
only to the fraction representing the share of the alienor. 
As to the actual items of property in which the purchaser is 
entitled to a share, it has been held that the family property as 
existing on the date of the suit, is to be taken (t;). 

(6) Right to mesne profits . — -The purchaser of the interest 
of a coparcener is not entitled to mesne profits between the 
date of his purchase and the date of his suit for partition [w). 


( 0 ) (1902) 25 Mad. 600, 718-710, surra. 

(p) (1915) 38 Mad. 684, 687, 22 I.C. 655, (’14) 
A.M, 440, supra ; Sabapathx v. 2'harda~ 
varoya (1920) 43 Mad. 309, 310-311, 64 I.C. 
515, (’20) A.M. 316. See (1875) 11 Bom. 
H.(^. 70, 83, supra. 

( 7 ) Vvrupaksha Reddi v. Chanalal Sit a 
Reddi (1944) Mad. 212. 

(r) (1920) 43 Mad. 309, 54 I.C. 515, ('20) A.M. 

316, supra. 

(s) Dhadlia Sahib v. Muhammad (1921) 44 Mad. 

167, 59 I.C. 311. 

(t) (1902) 25 Mad. 690, supra. 


(u) Chinnu Ptllai v. ATo/fmwf/m (1912) 35 Mad. 

47, 9 I.C. 596 [F.B.l ; Karo Gopal v. 
Paragauda (1917) 41 Bom. 347, 39 I.C. 
23, ('10) A.B. 130, dissenting from the 
observations in Gurhngapa v. Xandapa 
(1896) 21 Bom 797 on p. 805. 

(v) Muthukumara Sathapathiar v, Si'anarayana 

Pillai (1933) 66 Mad. 534, 141 I.C. 122, 
(’33) A.M. 158. 

(w) Maharaja of Bobbili v. X'^enhalaramanjulu 
(1916) 39 Mad. 265, 25 I.C. 585, (’15) A.M. 
453 : Trimbak v. Pandurang (1920) 44 
Bom. 021, 57 I.C. 682, (’20) A.M. 103. 


S. 261 
(3)-(6) 



312 


HINDU LAWi 


S.261 

(6)-(9) 


But where the family had become divided in status without 
a division of the property by metes and bounds, the purchaser 
of the undivided share of one of the members of the family is 
entitled to claim mesne profits from the members in possession 
thereof (x). 

(7) Right to sue for specific performance. — If the copar- 
cener who has sold his interest dies before completion of the 
sale, the purchaser is nevertheless entitled to specific per- 
formance of the agreement for sale {y). 

(8) Purchaser takes subject to equities. — The ahenee of a 
single coparcener’s interest takes such interest subject to aU 
charges, incumbrances and liabilities, affecting the coparce- 
nary property or that interest (z). Thus the purchaser of the 
undivided interest of a son in joint family property takes that 
interest subject to the habihty attaching to that interest to 
pay his father’s personal debts not tainted with immorality (a) 
[s. 290]. 

(9) Right to impeach previous alienations. — See sec. 270 
{i) below. 

Jllvstrations. 

(a) A and his son B are members of a joint family. A sells a certain item of the 
joint family property to C, the sale not being for legal necessity or for payment of antece- 
dent debts, and puts C in possession. The value of the property alienated is less than the 
value of .4’s share. There is no person interested in the joint family porperties except 
.4 and B. A sues B and C for possession of the property. According to a Madras de- 
cision, it is competent to the Court in such a case to declare that 0 is entitled to retain the 
property as the purchaser thereof, without driving him to the necessity of filing a fresh 
suit for partition : Ramasami v. Venkatarama (1923) 46 Mad. 815, 75 I.C. 406, (’24) 
A.M. 81. 


(b) A and B are members of a joint Hindu family. 0 is a bhauband (relation) of A 
and B. B sells his undivided share in one of the joint family properties to C. C enters into 
possession of the whole of that property, and continues in possession for several years. 
Subsequently A sues C for cxclu.sive possession of the property. In such a case, accord- 
ing to the Bombay rulings, the proper decree would be a decree putting A in joint 
possession with C, leaving A if ho is not willing to continue in joint possession with C to 
file a suit for partition : Bhau v. Bndha (1926) 50 Bom. 204, 90 I.C 166, (’26) A.B. 39;). 
According to the Madras ruling.s, the proper decree would be one directing C to deliver 
possession of the whole property to A, and declaring that O had acquired the undivided 
interest of B in the property with liberty to G to file a suit to have that share ascertained 
by a general partition. The Court may also stay execution for a fixed period to enable C 


(a:) SiiaraniamuTthi v, Venkaxjya (1934) 67 Mad. 

007, 148 I.C. 1086, ('34) A.M. 364. 

(y) Bhagwan v. Krishnuji (1920) 44 Bom. 967, 
58 I.C. 335, (’20) A.B. 104. 
iz) Udaram v. lianu (1875) 11 Bom. H.C. 76 ; 
Narayan v. I^athaji (1004) 28 Bom. 201 5 


Vznkureddi v. Venkxi Redi (1027) 50 
Mad. 535, 538, 100 I.C. 1018, (’27) A.M. 
471. 

(a) (1927) 50 Mad. 635, 100 I.C. 1018, (’27) 
A.M. 471, 6upra. 



ALIENATION. 


313 


to bring the suit *, Subha v. Krishnamachari (1922) 45 Mod. 449, 68 I.C- 869, (’22) A.M. 112. 261 (9) 

Kaiidasami v. VclayutJia (1927) 60 Mad. 320, 96 I.C. 993, {’26} A.M. 774. The decree 
would be the same in form in Bombay if the Court held upon the facts of the case that 
the purchaser should not be allowed joint possession with A : v. Budha (1926) 50 

Bom. 204, 96 LC. 166, (’26) A.B. 399. 

(c) A mortgages certain ancestral property to M. Subsequent to the mortgage a 
son is born to A. Thereafter a partition takes place between A and B, and the mortgaged 
property is divided between them equally. St then sues A and B for a sale of the mort- 
gaged property. B objects to a decree against his half shares objection must be 
overruled and a decree passed for the sale of the whole property, as the father was en- 
titled to the whole of the property at the dale of the mortgage : Ghinnu Pillai v. Kali- 
muthu (1912) 35 Mad. 47, 9 LC. 596. The same principle applies to sales ; Naro Gopal 
V. Paragauda (1917) 41 Bora. 347, 39 I.C. 23, (’16) A.B. 130. 

(d) Ay B and C are members of a coparcenary. A’s interest in the coparcenary 
property is sold, and it is purchased by P. B dies after the sale. P then sues A and C 
for partition. P is entitled on partition not to one-half, but to one-third only, the latter 
being A’s share at the dale of sale. P’s one-third share will pass to A and C by survivor- 
ship each taking one- sixth. 

(e) Ay a member of a joint family, sells one of the joint properties x to P. After- 
wards A sues his coparceners for partition, and another property y of an equal value 
is allotted to him on partition. Is B entitled to recover property y from A? It has been 
held that he is. But it has been held that if B sells property x to C, and a partition 
subsequently takes place between A and his coparceners, and property y is allotted to 
A on partition, C is not entitled to recover property y from A, and that C’s only remedy 
is to sue P for damages for breach of warranty, the reason given being that C never 
bargained for that property. 

Privy Council rulings. — The three leading Privy Council cases bearing on the 
subject dealt with in the present section arc — 

(1) ^een Dayal v. Jugd eep Naram (1877) 3 Cal. 198..4 J ^ 

(2) ha 7 tsi AW 'v- Shpo 'p ^>rsaJ. rr n.i a UK, 

(3) T fardi N grain v. Under Perkask (18.S3^ 10 ri*il 6^6) A— — .v 

In cases (1) and (3), a money decree was obtained against the father, and his “ right, 
title and interest ” in a specific property belonging to the family was sold in execution 
of the decree, the decree-holder himself being the purchaser. In both these cases, the 
purchaser obtained possession of the whole property. The cases were governed by the 
Mitakshara law as applied in Bengal, and the suit was brought by the sons to set aside 
the sale in its entirp.ty on the ground that the debt incurred by the father was without 
legal necessity, and the sale therefore was invalid and that it did not, according to the 
Mitakshara law as applied in Bengal [s. 260], pass even the father’s interest in the pro- 
perty as the father himself could not have, according to that law, sold his interest. On 
the other hand, it wa.s contended for the purchaser that the debt was contracted for 
a justifying necessity and that he was entitled to the whole property including the sons’ 
interest. It was found in each case that the debt was incurred without legal necessity 
and it was held that the sale being one in execution of a decree (as distinguished from 
a voluntary sale), the purchaser acquired the father’s interest in the property [s. 289]. 

But the purchaser did not acquire the sons* interest, for what w’sa attached and sold 
was the “right, title and interest” of the father only in the property. The Judicial 
Committee accordingly passed a decree directing the purchaser to deliver possession 
of the whole property to the sons and declaring that the purchaser had acquired the 
interest of the father and was entitled to take proceedings to have that interest ascertained 
by partition. 



314 


HINDU LAW. 


Case (2) was also governed by the Mitakshara law, as applied in Bengal. The suit 
in that case was brought against the father for a sale of a family property mortgaged by 
him, and a decree was passed for a sale of the property. The property was put up for 
sale and was purchased bv a stranger. The sons had before the sale objected to the 
sale on the ground that the debt incurred by the father was for immoral purposes, but 
they were referred by the executing Court to a regular suit. After the sale, the sons 
brought a suit to set aside the sale. The purchaser l^ad not entered into -possession 
of the property as in cases (1) and (3). Xlr wog fnnnfl rleht-, inunrrpd 

father was for immnral pnrp^t?'^ The Judicial Committee held that the proper decree 
to be passed was an order declaring that the purchaser acquired the undivided interest 
1 of the father in the property w'ith such power of ascertaining the extent of that interest 
Iby means of a partition as the judgment -debtor himself po.ssossed before the sale and 
Ian order confirming the possession of the sons subject to such proceedings to enforce 
pis right as the purchaser might take. 

The form of the decree in cases (1) and (3) applies w'here the purchaser has obtained 
possession of the property ; that in case (2) applies where he has not obtained possession. 
The substance of these forms is set out in sub-see. {1) of the present section. Their 
application is not confined to Court-sales. They also apply to voluntary or private 
sales. It will be noted that in cases (1) and (3)» the Judicial Committee directed the 
purchaser by their judgment to deliver possession of the w'holo property to the sons, 
though they declared that the purchaser w'as entitled to the undivided interest of the 
father. On the strength of these decisions tho High Court of ^fadras has held, as pointed 
out in sub-sec. (I), that the purchaser is not in any case entitled to joint possossion with 
the non-alienating coparceners. But the High Court of Bombay has decUnod to adopt 
this extreme view. 

262. Position of coparcener whose undivided interest has 

been sold.— Uliere the undivided interest of a coparcener has 
been sold, but there has been no partition either at the instance 
of the purchaser or of the other coparceners, the sale does 
not Effect the status of such coparcener in the family, nor does 
it extinguish his right to take by survivorship the interest of 
other coparceners on their death (b). Even if the other co- 
parceners sue to set aside the sale and to recover their share of 
the property sold it does not normally amount to a partition. 
Whether it does or not depends on the form of the plaint and ; 
the relief granted (c). / 

See ill. (d) to s. 261, at p. 313. • 

263. Rights of mortgagee from a coparcener. — (J) The' 
principles laid down in s. 261 above apply mutatis mutanSAs\ 
to a mortgagee of joint family property from a coparcener. | 
When a mortgage executed by a father for himself and an only • 
minor son was found to be not binding on the joint property f 
and when another son was born at the time of suit, thei 

(b) Gurfi/iffajja V. .Vanrfrtprt (1397) 21 Bom. 797, piilfii Piijn Yfnkatn Appalulanarasimka^ 

803. 1 J{ojii('91f))JIanl. 105, 183 I.C. 700, CW} 

(c) Cnitnalkonda Ram^ubtarai/a Sastri v. Gana- I A.7>r. 217. 



RENUNCIATION. 


315 


mortgage is binding on a half-share and not liierely one- 
third-share (d). 

(2) Where a coparcener mortgages a specific property- 
belonging to the j oint family or his undivided interest in such pro- 
perty, that property may, at a partition between the coparceners 
be allotted to another coparcener subject to the mortgage (as a 
part of the partition arrangement) or the latter takes the 
property free from the mortgage. In the former case the other 
coparceners have in effect obtained the equity of redemption 
only and are liable in the first place to the mortgagee who may 
sue them on the mortgage (e). In the latter case the mortgagee 
is entitled to recover his claim out of the substituted property 
which falls to the share of the mortgagor at the partition unless 
the partition is unfair and in fraud of the mortgagee (/) ; and 
may follow it in the hands of a subsequent transferee unless the 
transfer is shown to be without notice (g). In a proper case 
the partition may be reopened (h). 

264. Eenunciation by coparcener of his share. — (I) A 
coparcener may renounce his interest in the coparcenary 
property in favour of the other coparceners as a body but not 
in favour of one or more of them (i). If he renounces in 
favour of one or more of them the renunciation enures for the 
benefit of all other coparceners and not for the sole benefit 
of the coparcener or coparceners in whose favour the renuncia- 
tion is made {j). 

(2) In a Bombay case, it was held that where X 
has two sons A and B and A has a son C, and B has a son 
D, a release by A of his interest in the coparcenary property 
in favour of his father X enures for the benefit of all the other 
coparceners including A’s son G (k). In a later Bombay case, 
the facts were these : A had two sons B and C. C had a son 


(d) Sree Bajah Vasi Reddi Bala'^handratekhara 
Varaprasad Bahadur Mnnne Snllan Garu 
V Lakshmx Naramnhavi Ors. (19-10) 
Mad. 913. (’40) A.M. 091. 

{«) Atmaram Rao V Bhupandranath (1941) 
Nag. 077, 194 I.C 537, (’40) AN. 149 
(1940) M.L..I. 305. 

{/) Mathxa v. Appala (1911) 31 Mad, 175, C T C. 
991 ; ByjnrU/i LaU v. Ilamoodeeii (1873) 1 
T.A, 100. 21 W. R. 233 , Rem Chunder v. 
Tfiako J\iom (1893) 20 Cal. 533 ; Shaheb- 
iuda V. Tlills (1908) 35 Cal. 388 : Amofak 
V. Chandan (1902) 24 All. 483 ; Xatmuha 
V. Pyari Mohan (1910) 43 I'al. 103, SO 
I. C. 420, (’15) A.C. 330. 

ig) Kharag Narain v, JnnH Rai (193r) 10 riii. 
230, 169 l.C, 906, (’37) A. I*, f*IU 


(A) Lakshman v, Gopal (1899) 23 Bom. 3S5. 

(i) Pcddayya v. Ramalinqmn (1838) 11 Mad. 

406. But see SudaTsanam v. Narsimhulu 
(1902) 25 Mad 149, 156, and compare 
Appa V Ranga, (1883) 6 Mad. 71, where 
tli*'re was no renunciation in fact. 

(j) Chandar v. DaniDat (1804) 16 All. 369 ; 

Anandarao v. Ran 17 M.L J. 

184 (P.C.) : .Suhhnnna v. Balasiiftfca 
Redrfi (1945) Mad 610 (F.B ). 

(jfc) Wasantrtto v. Anandrao (1004) 6 Bom. L. R. 
925, 947, allirmed on appeal to the P.C. 
Biib nomine Anandmo v. rosanirao (1907) 
9 Bom. L. R. 505 See 6’Atr ajirao v. 
Fa«an/rao(1909)33 Bom. 267, 2 1. C. 249. 
Contrast Periasami v. Periasami (1878) 
1 Mad, 312, 5 I. A. 01. 


Ss. 

263,264 



316 


HINDU LAW. 


Ss. D. C was of weak intellect ; ke lived separately and his 
264, 265 father allotted to him property X being part of the joint family 
properties for his maintenance. After A’s death, B entered 
into possession of properties Y and Z being the rest of the 
joint family properties. Afterwards D sued his uncle B and 
his father C for partition. C died pending the suit. It was 
held that all the three properties should be thrown into hotch- 
potch and divided equally between B and T) (1). Both these 
decisions were affirmed on appeal by the Judicial Committee. 
Xo assignme.'it of a cosharer's interest in actionable claims 
is necessary when he retires from the membership of the family 
business and renounces his share therein {in). 

Illustratiom of sub-sec. {!). 

A, B, 0 and D, four Hindu brothers, are members of a joint family. A and B exe- 
cute a writing renouncing their interest in the jqjnt property in favour of 0 alone. Sub- 
sequently C .sues D for partition of the joint property, and claims throo-fourths of the 
property. According to the Madras High Court, C is entitled to threo-fourths and D 
IS entitled to one-fourth. According to the Allahabad High Court, the renunciation 
by A and B, though made in favour of C alone, enures for the benefit of both C and D 
and the property should be divided equally between C and I), 

Surrender of s/iorc.— Manu says: “If any one of the brethren has a competence 
from his own occupation, and desires not the property, he may be debarred from his share 
by giving him a trifle in lieu of maintenance.” Relying upon this passage, the High 
Court of Madras says that if a renunciation can be made in favour of the other copar- 
ceners as a body, there is no reason why it cannot be made in favour of one of them who 
alone may need such help. 


265. Insolvency of manager, father or other coparcener.— 
(/) Insolvency of manager not being the father of the other co- 
parceners. — On the insolvency of the manager of a joint Hindu 
family governed by the Mitakshara law, there vest in the 
Official Assignee or Receiver — • 

(a) the separate property of the insolvent manager and his 
undivided interest in the joint family property ; and 


(b) under the Presidency-Towns Insolvency Act the 
power which the manager of a joint Hindu family has to 
alienate the entire joint family property including the inter- 
ests of the minor coparceners for debts incurred on behalf of 
the family {n) [ill. (a)]. But under the Provincial Insolvency 
Act there is no provision to vest the right to sell joint family 
fu'operty in the Official Receiver (o). The following decision of 


(i) Mukund v. BalkrUhna (1927) 54 I. A, 413, 

52 Bom. 8, 105 J.C. 703, ('27) A.PC. 221. 

(m) Briimokan v. Mahabeer (1936) 63 CJal. 191. 
(m) Bangayya v. Thanikachaila (1806) 19 Mad. 

74 [elder brother manager] ; Sardarml \ 


V. Aranvayal (1807) 21 Bom. 205 [uncle 
manager) , Nunna v. Chidaraboywa (1903) 
26 Itad. 214 [eight une'es macager^]. 
(o) Nori Ramasaslndu v. Teluguntla Balkrishna 
Rao (1943) Mad. 83, 203 I.C. 607, (’42) 
A.M. 682 (P.B.). 



INSOLVENCY. 


317 


the Patna Court {f) may require reconsideration. The Calcutta S. 265 
High Court udth great hesitation but having regard to the 
decisions existing at the time has held that such power vests 
in the Official Eeceiver, but subject to any restriction attaching 
to the property existing before it vests in the Official 
Assignee or Receiver (g'). This case may also require consideration. 


(2) Insolvency of father . — On the insolvency of the 
father of a joint Hindu family governed by the Mitakshara law, 
there vest in the Official Assignee or Receiver — 

(a) The separate property of the insolvent father and his 
undivided interest in the joint family property ; and 


(b) The power which the father has to alienate the 
joint family property including the interest of his sons therein 
for paying his antecedent debts not contracted for an immoral 
purpose. In cases governed by the Presidency -Towns Insol- 
vency Act, 1909, this power vests in the Official Assignee 
under sec. 52 (2) of the Act (r). It does not pass by survivorship 
to the son and it may be exercised by the Official Assignee 
or by the Receiver after the father’s death (.s). As to cases 
governed by the Provincial Insolvency Act, 1920, a Full Bench 
of the Madras High Court has recently held relying on the Privy 
Council decision in Sat Narain v. SriKishan [in (r)] that the 
power does not vest in the receiver (<). The following decisions 
(?.t) of other courts were decided before the Pri^’y Council deci- 
sion and may have to be reconsidered. In one case {v) the 
Nagpur High Court referring to .the Privy Council decision 
merely followed the former decisions of the High Courts. 


ip) Bhohi Pratiad v. liarnkuinar (1932) 11 Pat. 
399,139 1 C. 31, (’32)A.P. 231. As to the 
rights of the Official Assignee to sMe on 
contracts entered into tv the manager, 
see Grey v. Walker (1913) 40 Cal. 523, 
Ifi I.C. :53. 

(q) Indu Bala Dasee v, Bakkeskwar Banerii 

(1937) 2 Cal. 675, 172 I.C. 014, (’37) A.C. 
517. 

(r) Offinal Asshnee of Madras v. Ram^handra 

(1023) 46 Mad. 64, 08 I.C. 898, (’23) A.M. 
5r> ; Sellamuthu Serrai, /» re (1924) 47 
Mad. 87, 80 I.C. 108, (’24) A.M. 411 
[F.H.l ; Sat Xarain v. Sri Kxshen (1936) 63 
T.A. 384, (1030) 17 Lah. 644, 38 Bom. L.lt. 
1129, 164 I.C. 6, (’36) A.PC. 277: 
Baliisami, In re (1928) 51 Mad. 417, 112 
I.C. 541, (’28) A.M. 735 [F.B.] ; (1903) 
26 Mad 214, supra [Indian Insolvent 
Act, 1848, s. 301. 

(«) Fakirckanl v. Motichand (1883) 7 Bora. 


438 (Ind. I. Ad, 1848, 7 applied], 

(<) A’ori Ita'imsastrnlu v. 2’eluguntla Balkrishva 
Bao <& Ors. (1043) Mad. 33, 203 I.C. 507, 
(’42) A.M. 682 [F.B.] ;Virupaks/ia Reddi v, 
Chanalal Sird Reddi (1944) Mad. 212. 

(m) Anand Pralash v. Narain Das (1931) 53 
AH. 230, 135 I.C. 119, f'31) A.A. 162 
[F.B.i ; Bawan £>as v. Cliiene (1922) 44 
All. 316, 64 T.C. 976, (’22) A.A. 70 ; Om 
Prakash v. Motiram (1926) 43 All. 400, 
94 I.n. 175, (’26) A.A. 447 ; Ram Qhulam 
V. Kailash (1930) 52 All. 493. 127 I.C. 
584, (*31) A.A. 59 ; Khemchand v. Nar^ 
pandas (1925) 6 La»'. 493, 89 I.C. 10^^, 
(’26) A.L. 41 ; Bishicanath Sao 
The Official Bcceiter (1937) 16 Pat. M 
[F.B.j, 167 I.C. 765, (’37) A.P. 

Jansa v. Ramkri'ihna (1937) Naj. 5n 
103 I.C. 895, (’37) A.N. 31 , Siddhesu^; 
Nath V, Deokali Din (1934) 9 LueV. 30^ 
147 [.C, 64?, (’34) A O. 1. 

(p) Zaxminarayan v. Dinkar (1943) Kag. 890, 
205 r.C. 279. (’43) A.N. 101. 



318 


HINDU LAW. 


S. 265 In Sat Narain's case {w) which was a case under the 

Presidency-Towns Insolvency Act, it was held that the interest 
of the son did not vest in the Official Assignee, although under 
sec. 52 (2) of that Act, or in some other way, the entire joint 
family property including the son’s interest therein may be 
made available for the payment of his personal debts. 


(c) As the interest of the son does not vest in the Official 
Assignee or Eeceiver, it may be attached even after the 
insolvency of the father by a creditor of the father in execu- 
tion of a decree obtained by him against the father or 
against the father and son in respect of a personal debt of the 
father, unless it has been previously sold by the Official 
Assignee or Eeceiver, and leave of the Insolvency Court is 
not necessary for attaching the son’s shares (aj). After attach- 
ment the Official Assignee or Eeceiver cannot exercise the 
power of sale as the father himself could not have done so 
[ill. (b)] ; see s. 295 (5). Where the son’s share is attached 
after the insolvency of the father, the proper procedure is to 
carry out execution proceedings in combination with the 
Official Assignee or Eeceiver so that the entire property may 
be sold at the same time to the benefit both of the attaching 
creditor and the father’s creditors {y). 


(d) As in the case of the father, so in the case of the 
Official Assignee and Eeceiver, the power to sell the son’s 
share for paying the father’s debts subsists if at all only so long 
as the family remains joint. After partition the Official 
Assignee or Eeceiver cannot sell the son’s interest as the father 
himself could not have done so [s. 295 (^)]. It has accordingly 
been held that if the son sues the father for partition of joint 
family property pending the insolvency of the father, the 
Official Assignee of Eeceiver cannot sell the son’s share. The 
institution of a suit for partition puts an end to the joint family 
jtatus [s. 325 (./)] and with it, to the right, also of the father to 
sell his son s share lor his debts, and as a result, extinguishes 
the right (even if it can pass otherwise ) also of the Official 
Assignee or Eeceiver to sell the son’s share for the father’s 


(w) 

(I) 


(1025) 52 I. A. 22, 6 I.ah. 1, 84 I.C. 88 
(’25) A.PC. 18, rcvc-siiiR (1922) 3 l,o 
320, 09 I.C. 483, (’23) A.L. 1 (F.H 
Arunachalam v. Sabaratnam (1939) M«d .58 


(!f) (1026) 48 All. 343, 92 I.C. 309, (-26) A.A. 

202, supra [Prov. T. Act] ; (192S) 49 Bom. 
785, 80 I.C. 996, ('25) A.B. 410, supra. 



INSOLVENCY. 


319 


debts ( 2 ). But though, the Official Assignee or Eeceiver cannot S. 265 
sell the son’s share after the institution of a suit for partition, 
he can institute a suit against the son for reahzing debts due 
to the father’s creditors and enforce the decree in such suit 
by selling the son’s share or he may apply to be joined as a 
party in the son’s suit for partition and by proper procedure 
can obtain a decree which he can execute against the son’s share 
(a) (ill. (c) ]. 

(3) Insolvency of other coparceners . — On the insolvency 
of any other coparcener, his separate property and his interest 
in the joint family property rest in the Official Assignee or 
Receiver and are available for the benefit of his personal 
creditors (6). But the creditors of the insolvent’s father are 
not entitled to priority over those of the insolvent (c). The 
purchaser of the undivided interest of the insolvent coparcener 
from the Official Assignee is like any other private purchaser 
and is not entitled to mesne profits prior to a suit for partition {d). 

UUistralions, 

(a) w4, his minor son S, and his minor brother B, constitute a joint family. A 
is the manager of the family. A is adjudged an insolvent on the petition of his personal 
creditors as well as creditors of the joint family business. The Official Assignee sells a 
house belonging to the family to d, including the interests of S and B therein. The 
sale will pass the interest of if tlie personal debts contracted by A were not for an 
immoral purpose, the reason being that a father has the power to dispose of his son’s 
interest in joint family property for the payment of his debts not contracted for immoral 
purposes, and this power vests in the Official Assignee on the insolvency of the father. 

The sale also passes the interest of B in the house, the reason being that the manager of 
a joint family has power to alienate the family property including the interest of minor 
coparceners therein for family purposes, and this power vests in the Official Assignee on 
the insolvency of the manager ; see Rangayya v. Thanikachall^ (1896) 19 Mad. 74 ; 

Nunna v. Chidaraboyina (1902) 26 Mad. 214 ; Official Assignee of Madras v. Ramchandra 
(1923) 46 Mad. 54, 08 I.C. 898, (’23) A.M. 55. 

(b) A and his son constitute a joint Hindu family, A is adjudged an insolvent 
on the petition of his personal creditors, and a Receiver is appointed of his property. 

The family owns five immoveable properties of which two are sold by the Receiver. 

Afterwards one of A’s personal creditors who had obtained a decree against A and his 
son attaches the son’s share in the remaining thi'ce properties in execution of the decree. 

The attachment is valid and the creditor is entitled to sell the son’s share in these 

(^) lialusami At/t/ar, In re (1928) 51 Mad. 

417, 112 I.C. 541, (’28) A.M. 735 [F.BJ ; 

KrUihnam'irthy v Sundaramurthp (1932) 

55 ^Lld. 558, 138 I.C. 225, (’32) A.M. 381 ; 

Sat Narain v. Sn Kishen Das G3 T.A. 384, 

17 Lah. (J44, 38 Bom. L.ll. 1129, 164 I.C. 6, 

(’36) A. PC. 277. This case overrules the 
contrary decision of the Full Bench of the 
Allahabad Hitih Court, in Banket/ Lai v. 

Duma Prasad 53 All. 808, 135 I C 139 
(’31) A.A. 612, on this point. 

(a) (1927) 51 Mad. 417, 443, 467-468, 112 I.C. 


541, (’28) A.M. 735 [F B.l, supra. ^ 

(b) yanna v. Cbidamboyina (1903) 26 Ma^ 

214, 221 ; Lakshmanan Cheltiar v. Sri- 
nirasa lyenqar (1937) Mad. 203, 106 I.C. 
378, (*37) A.M. 131. 

(c) Pr. y. 5m. Otjockalingam Chetiiar v. Official 

Assinnee. of Madras (19431 Mad. 603, 
206 I.C. 482, 69 I.A. 158, (’43) A.PC. 
15. 

(d) V enkfUarat/udu v. Sit aramaknshnayya (1935) 
58 Mud. 126. 153 I.C. 368. (‘341 A.M. 676 



320 


HINDU LAW. 


S.265 


properties in execution of his decree and apply tho aalo proceeds in payment of the judg- 
ment debt. The Receiver has no right after the attachment to sell the son’s share in 
those properties for the benefit of the general body of --I’s creditors (dl). 

(c) A and his sons constitute a joint Hindu family. A is adjudged an insolvent 
on the petition of his personal creditors, atid his property vests in the Official Assignee. 
Pending A’s insolvency A’s sons institute a suit against A for partition of the joint family 
properties. The Official Assignee eannot, after the institution of the suit, sell the son’s 
shares in the joint family properties, though ho may seize them in execution of a decree 
that he may obtain against them in a regular suit to bo filed by him against the sons in 
respect of the father’s debts: Balusami Ayyar-t In rc (1928) 51 Mad. 417, 112 I.C. 541, 
(’28) A.M. 735 [F.B.]. If the Official Assignee or Receiver himself files a suit for partition 
against the sons after the insolvency of the father, and allows a decree to be passed 
allotting separate shares to the sons, and the sons take possession of their sliares, he 
cannot afterwards apply to sell those shares for the benefit of the father’s creditors : 
Tryamkeshar v. Babu Basanl (1930) 5 Luck. 248, 123 I.C. til, (’30) A.O. 36. 

Insolvency Acts^ — See Indian Insolvent Act, 11 and 12 Viet., c. 21, ss. 7 and 30 
[repealed]; Presidency-Towns In.soivcncy' Act, 1909, s, 2 (e), and ss. 17, 23 and 52; and 
Provincial Insolvency' Act, 1920, s. 2 (d), and ss. 28 and 37. S'- 

JOint Possession. — According to tho Madras High Court the Official Assignee is 
entitled, on the insolvency of any coparcener, to joint possession with tho other 
coparceners (e). [Contrast s. 261]. 


Sat Narain V. Beharl Lai (/). — In order to understand tlieo.xaot point of tho deci- 
sion in Sat Sarain’s case, it is important to note tho relevant sections of the various 
enactments relating to tho law of Insolvency in India. Under section 7 ol tho Indian 
Insolvent Act, 184S, “ all the real and personal estate and effects” of the insolvent, and 
all his ‘‘ future estate right, title, interest and tru.st ” in or to any real or personal estate or 
effects vest in the Official Assignee. Section 30 of the Act provides that all '■ powers ”■ 
vested in the Insolvent which lie might lawfully execute for hi.s benefit shall be vested 
in the Official Assignee. S. 17 of tho Presidency-Towns Insolvency Act and s. 28 (2) of the 
Provincial In.solvcncy Act correspond with s. 7 of tho Indian Insolvent Act. R. 52(2)(b) 
of the Prosidenoy-Tonns Insolvency Act oorre.sponds with s. 30 of the Indian Insolvent 
Act. There is no such section in the Provincial Insolvency .4ct. S. 2(e) of the Presi- 
dency-Towns Insolvency Act defines “property ” as including “ any property over which 
or the profits of which any person has a disposing power which ho may exorcise for his 
own benefit.” S. 2(1) (d) of the Provincial Insolvency Act defines “ property ” i” exactly 
the same terms. Prior to the decision in Sat Narain's case tliere was a conflict of opinion 


in India whether on the insolvency of a Hindu father tke share itself of his son 
vested in the Official Assignee for the benefit of tho general body of the father’s creditors 
or merely the power which the father has of selling tlie joint family property f ir the 
payment of his antecedent debts not tainted with immorality. The High Court of 
Bombay in a ease under the Indian Insolvent Act held that the son’s share itself vested 


in the Official Assignee {g). The High Court of Madras, however, held in cases uader 
that Act and the Presidency -Towns and Provincial Insolvency Acts, that there iirno 
vesting of the son’s share but a vesting merely of the power to sell {h). In Sat Narain’s 
case the Judicial Committee held that the share itself of the son did not vest in the 


(.dl) (Jo-palakTuhna'/iia v. Go}tala,i 51 Mail. 

342, (’28) A M. 479 The decision Is not 
correi.t with respect to the first two items, 
(e) Ogicial Assignee v. Jtamstiandra (1923) 
45 Mad. 64, 68 I.C. 898, (’23) A.M, 55 . 
Venkatram v. Chokkier (1923) 51 Mad. 
567, 109 I.C. 616, (’28) A.M. 531. 

(/) (1925) 52 I. A. 22, 6 Lah. 1, 84 I.C. 883, 
(’25) A. PC. 18, reverainp! Betiarilal v. Sat 
Narain (1922) 3 Lah. 329, 69 I.C. 486, 
(’23)A.L,1. 


iff) Bukrichandy. Molicitand (1883) 7 Bom. 438. 

iti) Nunna v. Chidaraboijina (1903) 25 Mad. 
214 [Ind. I, Act) ; Ojicial Assignee, 
Madras v. Jlamrhandra (1923) 46 Mad, 
54, 68 I.C. 898, (’23) A.M, 55 [Pr. T.I. Art], 
Sellamuthu, In re (1924) 47 Mad. 87, 
80 I.C. 108, ('24'l A.M, 411 [F.B.) IP'’ 
T.I. Act] ; Sunkaranarayan v. llajamnr-i 
(1924) 47 Mad. 462, 83 I.C. 190, (“it) 
A.M. 650 [Prov. I. Act). 



INSOLVENCY. 


321 


Official Assignee, observing afc the same time that the joint family property might bo 
made available for the payment of the father’s debts under s. 62 (2) of the Presidency- 
Towns Insolvency Act. As to cases in which it was held that upon the insolvency of the 
father the share itself of the son vested in the Official Assignee, their Lordships at p, 27 
said as follows : — 

“ That means that when a Hindu, who happens with his sons to constitute a joint 
family subject to the law of the Mitakshara, is adjudged an insolvent under the Presi- 
,dency -Towns Insolvency Act, 1909, not only his own rights but all the tights and 
interests of his sons who are his coparceners in joint family property vest in the Official 
Assignee by virtue of the adjudication alone. That is a startling proposition.” 

And later on at p. 33 their Lordships said : — 

“ If their Lordships had to construe s. 7 of the 11 and 12 Viet., c. 21, they would 
doubt that the Imperial Parliament sitting at Westminster in passing the 11 and 12 
Viet., c. 21, ever contemplated or intended that ‘the real and personal estate of such 
petitioner ’ which a court might order to be vested in an Official Assignee, or a right to 
^sell it for the debts of a Hindu father, might be held to include or should include the 
-^npartitioned separate interest of a Hindu coparcener, who was not a petitioner, in the 
immoveable property of a joint family.” 

The point for decision in Sal Naratn's case was whether on the insolvency of a 
father of a joint Hindu family, his son was entitled to maintain a suit for pre-emption 
with respect to a certain house w’hich belonged to the joint family as “owner” of a 
contiguous and dominant tenement. If in addition to the father’s interest in the 
tenement the eon’s interest also vested in the Official Assignee under the Presidency- 
Tow'ns Insolvency Act, the son could not be regarded as an owner of the tenement and 
he w'orild not therefore be entitled to maintain the suit. But he would be so entitled if 
his interest did not Test in the Official Assignee. Their Lordships of the Privy Council 
held that the son’s interest did not vest in the Official Assignee and that the son was 
entitled to maintain the suit. The ground of the decision was that the only property 
that vested in the Official Assignee was the “ property ” of the insolvent, and that the 
son’s interest was not tlie “ property ” of the insolvent father within the meaning of 
F. 2 (d) of the Act, as the wording of that section contemplated only an “ absolute and 
unconditional power of disposal,” w'hich a father’s power is not, as it depends upon 
the existence of debts liable to be satisfied out of the son’s share. 

* But though the son’s interest in joint family property may not be the “ property ” 
of- the insolvent father within the meaning of the Presidency -Towns Insolvency Act and 
•may not therefore vest in the Official Assignee, the question still remains whether the 
cd‘^acity to exercise the power which the father of a joint family has to alienate the whole 
coparcenary property including his son’s interest therein for payment of his antecedent-; 
debts vests on his insolvency in the Official Assignee. The answer to this question 
depends on a consideration of s. 17 and s. 62 (2) (b) of the Presidency-Towms Insolvency 
Under s. 17 when a person is adjudicated insolvent, his “ property ” vests in the 
.Official Assignee and becomes divisible among his creditors. S. 62 (2) (b) declares that 
“ the property of the insolvent ” shall comprise the following particulars, namely, “ the 
capacity to exercise and to take proceedings for exercising all such powers in or over 
or in respect of property as might have been exercised by the insolvent /or his own benefit 
at the commencement of his insolvency or before his discharge.” The combined effect 
of these two sections is that on the insolvency of the father of a joint Hindu family, the 
capacity which the father has to exercise the power to alienate the whole coparcenary 
properiy including his son’s interest therein for payment of his antecedent debts not 
incurred for illegal or immoral purposes vests in the Official Assignee. It has accordingly 
been held by the Privy Council that when at the commencement of his insolvency a 


S.265 



322 


HINDU LAW. 


Ss. 

265,266 


father has the power to enforce by sal© of the whole joint family estate the pious obliga- 
tions of his sons to discharge out of their interest his then existing untainted antecedent 
debts, the capacity to exercise that power for the fteneiit of the insolvent vests in the Official 
Assignee after adjudication, whatever may be the technical effect of the adjudication 
upon the coparcenary in other respects. The Official Assignee, therefore, may sell the 
whole coparcenary property, as he could have done before the decision in Sat Narain's 
case, for payment of such debts (t). The Provincial Insolvency Act, however, does not 
contain any provision corresponding to sec. 52 [2) (b) of the Presidency-Towns Insolvency 
Act. 

Summary . — To sum up, the position appears to be that the Privy Council have 
held (1) that on the adjudicatibn of the father the interest of the son in the joint family 
property does not vest in the Official Assignee, but (2) that the father’s power to sell 
the son’s interest in the joint family property for debts which are not immoral or illegal 
can be exercised by the Official Assignee. Both the Privy Council decisions were under 
the Presidency-Towns Insolvency Act, but as their Lordships in the later case approved 
of the decisions under the Provincial Insolvency Act, the same view would probably be 
taken by the Privy Council under that Act. ‘ 

(4) Two or more membeJs of a joint family may be 
adjudicated insolvents on a single petition if they are liable on a 
joint debt and have committed a joint act of insolvency, but 
the joint family as such cannot be adjudicated insolvent (j). 

266. Joint family firm— Minor— Insolvency.— A minor 
member of a joint family firm cannot as such be adjudged an 
insolvent (k). 


A Hindu dies leaving a business. On his death the business descends to his five 
sons, A, B, C, D and E. H is a minor. The firm is unable to pay its debts. A, B, C and 
D may be adjudged insolvents, but not E, as A is a minor. This proceeds on the rule 
of English as well as Indian law that an infant partner cannot be adjudicated an 
insolvent (1). But though E cannot be adjudged an insolvent, the Official Assignee 
succeeds on the insolvency of A, B, C and D, the managing members of the joint family 
firm, to the right of a manager to alienate the joint family property including the share 
of minor coparceners for the payment of debts incurred in the course of the business (m). 

The above observations apply only to an ancestral business. A different rule applies 
when a new business is started by the adult members of a joint family after the death 
of the ancestor. In such a case the matter rests purely on contract with the result that 
on the insolvency of A, B, G and D, the Official Assignee does not succeed to the rights 
of a manager of a joint family firm, but gets a right merely to recover the minor’s share 
for the benefit of the creditors of the partnership, if the minor was admitted to the 
benefits of the partnership within the meaning of sec. 247 of the Contract Act (n). 


(i) Sat Sarain v. Sn Kwhm Das 7 : 

Lah. 376, 89 I.C. 998, (’25) A.L. 416; 1 (m) 
Dalusami Ayyar, Jn re (1928) 51 Mad. i 
417, 112 I.C. 541, (’28) A.M. 735 (F.B.). 

(J) Mahabir Prasad Paddar v. Ram Tahat 

Mandar (1937) 18 Pat. 724, 172 I.C. 737, i 
('37) A P. 065 ; Polmlo Mat v Basanl 1 
P.am I.L.H.. 1941 Lah. 55, 92 I.C. 532. ] 

(I) San;/aa£ Ctaraav. AavtoaA (1915) 42 Cal. 225, i 
26 I.C. 830, (’15) A.C. 482 ; Hansraj Main, ' 

In re (1883) 7 Bom. 411, 413. See also | 
Nobodeep Chunder, In re (1886) 13 Cal. 68 | 

(0 (1915) 4'2 Cal. 225, 26 I.C 836, (’15) A.C. 1 


4fe , Irupru. 

Nunna V. Chidaraboyina (1903) 20 Mad, 214, 
but see 42 Cal. 225, 233-240, 26 I.C, 
836, (’15) A.C, 482, supra , Mt. Champa v, 
OS^cial Uecexier, iCara/7ii (1934) 15 Lah. 9t 
144 1.0. 030, ('33) A.L. 001 ; Bhola Prasad 
V. Ramkumar Marwan (1932) 11 Pat. 399, 
139 I.C. 31,032) A.P. 231. 

(n) .SttHVttsi Charan v. K-rishnudhan (1922) 49 
I.A. 108, 49 Cal. 560, 67 I.C. 124, (*22) 
A. PC. 237 [business not ancestral but 
new — case governed by Contract Act, 
s. 247 and decided under that section!. 



SETTING ASIDE ALIENATIONS. 


323 


It is well established that a minor cannot be a pariner, but he may be admitted to 
the benefits of a partnership between the adult members in respect of a new business 
started by them, in which case the minor’s share in the property of the firm is liable 
for the obligations of the firm. See notes to sec. 234, “ New business,” at p. 266. 

VI.— SETTING ASIDE ALIENATIONS. 

267. Setting aside gifts. — -A. coparcener, according to 
the Mitakshara law, cannot make a gift of the coparcenary 
property, not even of his own interest in the property [s. 258]. 
Therefore, where such a gift is made, and it is objected to by 
the other coparceners, the Court will set aside the gift in its 
entirety. The gift is not valid even to the extent of th^ donor’s 
interest in the property [s. 270, sub-sec. (1), ill. (a)]. 

The above rule does not apply to gifts by a father of ances- 
tral property to the extent mentioned in secs. 225 and 226. 

268. Setting aside sales and mortgages— Bombay, Madras and 
the Central Provinces. — (2) Where a member of a joint family 
governed by the Mitakshara law as administered in the 
Bombay and Madras Presidencies sells or mortgages more 
than his own interest in the joint family property, the aliena- 
tion not being one for legal necessity [s. 242] or for payment 
by a father of an antecedent debt [s. 295], the other members 
or persons to whom their interests in the property have passed (o), 
are entitled to have the alienation set aside to the extent 
of their own interests therein (p). The alienation cannot be 
set aside in its entirety, for according to the law as prevailing 
in Bombay and Madras, a coparcener can alienate his own 
interest in the joint property. If any coparcener has consented 
to the alienation, the alienation will bind his interest also 
[s. 242 (5)]. 

(2) Equities on setting aside alienations.— Where an 
ahenation is not for legal necessity or for payment of an 
antecedent debt, and it is set aside at the instance of the 
other coparceners as regards their shares, there is no equity 
entitling the ahenee to a refimd of a proportionate part of the 
purchase-money in respect of those shares {q). And it has 
been held that even if a suit is brought by the sons for a parti- 
tion and for setting aside an alienation made by their father, 
the sons are not, as a condition to recovering their share of 
the property, under a pious obligation to refund to .the alienee 
their share of the consideration received by the father. The 


(o) Alla V enkataramanna v. Palacherla Man- 

gamma (1944) Mad. 867. 

(p) jtfaroppa v, Rangasami (1900) 23 Mad. 89; 

Naro V. Paranowda (1917) 19 Bom. L.R. 
69 ; 39 1.0. 23, ('16) A.B. 130 ; Ramappa 


V. Yellappa (1928) 52 Bom. 307, 109 I.C. 
532, (’28) A.B. 150. 

(j) Vnabadra y. Qumcenkata (1699) 22 Mad. 
312. 


Ss. 

267 , 2 ^ 



324 


HINDU LAW. 


Ss. 

268, 269 


ground of the decision is that the pious obligation to pay the 
father’s debts attaches only to a debt existing at the date of the 
suit, and that the consideration received by the father from the 
alienee is not in the first instance a debt due from the father ; 
it becomes a debt onl}^ when the alienation is set aside and a 
decree is obtained by the alienee against the father for failure 
of consideration (r). [See the cases cited in sec. 269 (2)]. 

Equities on seitmg aside alitnations .- — The rule that a coparcener cannot make a gift 
of liis share cannot be evaded by making a sale at a grossly inadequate price (5). As to 
how the equities should be worked out if the transaction amounts in effect to a gift, see 
the undermentioned case (/). 

Imprmiements made by alienee .' — See sec. 185 [Equities on setting aside alienation 
by widow], and the undermentioned case (m). 

Mesne profits on selling aside alienation. — ^Yho^e an alienation is set aside under 
this section, and the purchaser is in possession, ho may be required to pay mesne profits 
from the date on which the sale is repudiated by the otlicr coparceners, but not from 
the date of sale, the sale being valid until it is repudiated (i/). 


269. Setting aside sales and mortgages — Other Provinces.— 
(i) Where a member of a joint family governed by the 
Mitakshara law as administered in Bengal and the United 
Provinces sells or mortgages the joint family property or 
any fortion thereof udthout the consent of his coparceners, 
the alienation is liable to be set aside wholly unless it was for 
legal necessity [s. 242], or for payment by a father of an 
antecedent debt [s. 295], and it does not pass the share even 
of the alienating coparcener. The result is that if the aliena- 
tion is neither for legal necessity nor for the payment of an 
antecedent debt, the other coparceners are entitled to a 
declaration that the alienation is void in its entirety {iv). Even 


(r) 


(«) 

(t) 

(u) 

(s) 

(u>) 


Srinivasa v. KuppitBWamt{l92l) 44 Wad. SOI ! 
64 I.C. 698 (’21) A.M, 447 ; Poiaiarapa, 1 
Lingayya Or,, v. Vuppulusi Pntmayya I 
Ors. (J942) Mad. 602, 108 I.C. S88. I 
(•42) A.M. 183, [F.B.l ; 

SoUala V. Pulicat (1904) 27 Mad. 162; i 
VenkatapalU v. Fappia (1028) 61 Mad I 
824, 113 I.C. 158, (’28) A.M. 788. i 

(1928) 51 Mad. 824, 113 I.C. 168, {'28) i 
A.M. 788, supra. 


Eamappa v. Yellappa (1928) 62 Bom 307 

109 I.C. 532, (’28) A.B. 150. 

Ramasani v. Ymlalarasna (1923) 46 Mad 
816, 822, 76 I.C. 408, (’24) A.M 81- 
Gangabisan v. Vattabhdas (1924) 48 
Bom. 428, 432, 87 I.C. 703, (’24) A B. 433. 

Sadabarl Prasad v. Poolhash Peer (1860) 
3 Seng. l.E. [F. B J 31 [mortgage] ; Madho 
Parshad v. Merhban Singh (1801) 18 Cal. 
167, 17 I.A, 194 [?ale] ; Palyobind Das v 
If drain Lai (1803) 15 All, 339, 20 I.A. 116 
[mortgage] ; Chandradeo v. hfala Prasad 
(1909) 31 All. 176, 208, 1 I.C. 479 [P.B.] 
Imortgage] ; Kali Shankar v. Nauoab Sinyb 
(1909) 81 All. 507, 3 I.C. 009 [mortgage] • 
Narain Prasad v, Sarnam Singh (1917) 44 


I.A. 163, 39 All. 600, 40 I.C. 284, (’17) 
A. PC. 41 Imortgage] ; Anant Pain v 
Collector ofKtak (1018) 40 All. 171, 44 I C. 
200, (’17) A. PC. 188 [mortgage] ; Sahu 
Pam V. Phup Singh (1917) 44 I.A. 120. 
39 All. 437, 38 I.C. 280, (’17) A. PC. 01 
[mortgage] ; Manna Lai v. Karu Singh 
(1920) 1 Pat. L J. 0, 58 I.C. 700, (’19) 
A. PC. 108 [mortgage] ; Pam Sahai v. 
Parbhu Dayal (1021) 43 All. 055, 63 I.C. 
358, (’21) A. A. 137 [sale] ; Padant .v. 
Madho Pam (1921) 2 Lali. 338 ; 06 I C. 
19, (’22) A.L. 241 [sale by fatlicrj ; Daya 
Pam V. Barcharan Das (1027) 8 lab 
678, 107 I C. 781, (’28) A.L. Ill [sale by 
father] ; Amar Dayal v. Bar Ptrshad 
(1020) 6 Pat. L.J. 00,5, 68 I.C. 72, (’20) 
A.PC. 433 [iiiortgagej ; Bam liilas v. 
Pamyad (1920) 5 Vat. IJ. 022, 58 
I.C. 303, (”20) A,P. 44 k [mortgage] ; 
Mathura v, Pajkumar (1021) 0 Pat. I, .) 
.526, 0’2 I.C. 132, (’21) A.P. 447 (P.B.] 
[mortgage]; Angraj v, PamPvp (1931) 
0 Luck. 158, 127 I.C, 38, (’30) A.O. 284 
[suit for pos.sessiOD by mortgagee] ; Malak 
Chand v. ZKro Lai (1036) 11 Luck, 449, 
157 I.C 045, (’36) A 0. 610. 



SETTING ASIDE ALIENATIONS. 


325 


in the Punjab where by custom a son cannot claim partition 
against the father, the son is entitled to joint possession with 
the father when the alienation is set aside {x). See sec. 260 
above. 

It has been held in Allahabad and Patna that the aliena- 
tion can be impeached only by a coparcener other than the 
alienating coparcener or by a transferee who has acquired 
the interest of the entire j oint family in the property alienated {y) . 

The power of avoidance in such a transferee cannot be 
greater than that of the coparcenary body at the time of the 
transfer (z). . 


(2) Equities on setting aside alienations . — Where in Bengal 
and the United Provinces an alienation is set aside in its 
entirety, the question often arises whether the alienee is entitled 
to any equity or charge on the alienor’s share for the consi- 
deration paid by him to the alienor. It has been held by 
the Judicial Committee that he is not (o), except perhaps in 
special circumstances such as those which existed in Mahabeer 
Per sad v. Ramyad {b). In that case the High Court of Bengal 
declared a charge on the shares of the mortgagors (being the 
father and his eldest son) in favour of the mortgagee on the 
ground that they had represented to him that they had power 
to charge the joint family property which, in fact they had 
not [ills. (1) and (3)]. And it has been held by the same 
tribunal that even where such circumstances exist, the equity 
(if any) arising out of them cannot be enforced where the 
coparcener who made the alienation is dead and his share 
has passed by survivorship to the other coparceners, such as 
nephews, who are not liable for the personal debts and obliga- 
tions of the deceased (c). They take the share of the deceased 


(i) Raj Kishore v. Madan Gopal (1932) 13 Lah. 
491, 143 I.C. 240, ('32) A.L. 036. 

(y) Madan Lai v. Oajendralal (1929) 51 All. 

575, 530, 110 I.C. 436, ('29) A.A. 243; 
Madan Lai v. Chvddu (1931) 53 All. 21 ; 
23-26, 128 X.C. 829, ('30) A.A. 852; 
Kharag Narayan v. Janki iJai (1937) 
16 Pat. 230, 169 I.C. 908, (’37) A.P. 540 ; 
Shyam Behari Singh v. Raneshwar Prafad 
Sahu (1941) 20 Pat. 904, 198 I.C. 208 
(’42) A.P. 213. 

(z) Chandradeo v. Mala Prasad (1909) 31 All. 

170, 1 I.C. 479. 

(a) Naraxn Prasad v. Sarnam Singk (1917) 
44 I.A. 103, 39 All. 500, 40 I.C. 284, 
(*17) A. PC. 41 [mortgage] ; Anajit Ram v. 
Collector of Etak (1918) 40 All. 171, 176, 
44 I.C. 290, (’17) A.PC. 188, foUowed In 
i?am5aA<jt v. Parbhn Dayal (1921) 43 All. 


055, 63 I.C. 358, (’21) A.A. 137; Amar 
Dayal v. Jlar Pershad (1020) 5 Pat. L.J. 
605, 58 I.C, 72, (’20) A.P. 433. 

(6) (1874) 12 Bsng. L.R. 90, as explained in. 
Madho Parehad's case (1890) 18 Cal. 157, 
100, 17 I.A. 194, and Ararat?! Prasad’s 
case (1917) 44 I.A. 163, 164, 165, 39 All. 
500, 504, 40 I.C. 284, (’17) A.PC. 41 ; 
Mahabeer l*ersad'A case ^\as followed in 
Jamuna v. Ganga (1892) 19 Cal. 401, 410, 
where the alienation was impeached by 
a stranger to the fatnxly who had succeeded 
to the rights of all the coparceners 
including a coparcener who had not 
consented to the alienation. See also 
(1920) 5 Pat. L.J. 605, 58 I.C. 72, (’20) 
A.P. 433, supra. 

(c) Madho Pershad v. Meherba7i Singh (1890) 
18 Cal. 157, 17 I.A. 104. 


S.269 



326 


HINDU LAW. 


S. K9 in tlieir right by survivorship, and are not affected by any 
such equity [ill. (2)]. 

There is a conflict of opinion whether where a sale is 
efiected by the father, and the suit is brought by the sons in 
their father’s lifetime to set aside the sale, the sale not being 
one either for legal necessity or for the payment of an ante- 
cedent debt, the sons are entitled to a decree without refund- 
ing the whole or any part of the purchase money to the 
purchaser. The High Court of Calcutta has held that they 
are not entitled to a decree without refunding the whole of the 
purchase money, the reason given being that immediately the 
sale is set aside, the purchaser would be entitled to recover the 
whole of the purchase money from the father, and it would 
thus become a debt due by the father for which the whole of 
the joint family property, including the property sold, would 
be liable by reason of the son’s pious obhgation to discharge 
the father’s debt, unless it Avas contracted for an immoral 
purpose {d). This view has been dissented from by the High 
Courts of Lahore (e), Madras (/) and Allahabad (g). It has 
been held by those Courts that the pious obligation to pay the 
father’s debt does not attach except to a debt existing at the 
date of the suit, and the price received by the father from the 
purchaser is in no sense a debt owing by him to the purchaser. 
It becomes a debt only when the sale is set aside by the Court, 
for it is only then that the purchaser is entitled to a refund of 
the price for failure of consideration. It has accordingly been 
held by those Courts, that the sons are not. as a condition to 
recovering the property, under a pious obligation to refund 
any portion of the purchase money, and the sale must be set 
avside unconditionally. 

(3) An alienation which does not bind the share of the 
alienor himself cannot bind the share of a coparcener con- 
senting thereto [s. 242 (5)]. 

lltuslrations. 

(1) A and his son B are members of a joint family governed by the Mitakshara law 
as administered in Allahabad. B mortgages his half .share to J/ for his own personal 
benefit without A’s consent and without legal necessity. M sues A and B for a decree for 

(dj Koir Uasmat J!ai v. Sunder Dus (IfeSO) 11 | (f) Sritniam v. Kuppuhvur.n (1021) 44 Mad. 

Cal. 396. But see Modlioo Vayal Singh I 801, 04 I.C 698, (’21) A SI 447 

V. Oollmr Singh (1808) 9 W.Il. 611. 

(e) Daga Ham v. narcliarim Das (1927) 8 Lah. , (g) Madan (lopal v. Sati Prasad (1917) 39 All. 

678, 99 I.C. 666, (’28) A. L 111 ; findam v. I 485, 40 I.C. 4.51, (’17) A. A. 326, Chan- 

Madho Ram (1921) 2 Lah, 338, 66 I.C. 19, ' dradto v. Mata Prasad (1909) 31 All. 176, 

(■22) A.L.241. ' 1 I.C. 479. 



SETTING ASIDE ALIENATIONS. 


m 


sale on the mortgage. The mortgage is void, and it cannot be enforced even ag, tin.it 
B's share. But M may obtain a money decree against B personally, and attach and 
sell B’s interest in the property in execution of the decree : Balgobind Dae v. Narain 
Lai (1893) 20 I. A. 116, 15 All. 339. [There were no special circumstances in this case 
to entitle 31 to a charge on B'a share for the money advanced by him to B.] 

(2) A and his brother’s son B are members of a joint family governed by the 
Mitakshara law as administered in Bengal. A sells his undivided interest in the joint 
family property to Pfor Ea. 10,000 without the consent of B and without legal necessity. 
Afterwards A dies, and his share passes by survivorship to his nephew B. After A’s 
death, B sues P to set aside the sale. The sale by A, though it was of his own share, is 
void and B is entitled to A'b share by survivorship. Even if there was any equity in P’s 
favour, B could not bo affected by it. B takes A'a share m his own right by survivor- 
ship and is not liable for the personal debts of his uncle : Madho Perskad v. Alehrhan 
Singh (1890) 17 I.A. 194, 18 Cal. 157. 

(3) A joint family consists of three Hindu brothers and their sons, governed by 
the Mitakshara law as administered in Allahabad. The three brothers mortgage the 
joint family property without the consent of their sons and without legal necessity. 
The mortgage is void in its entirety. There being no special circumstances in the case, 
the mortgagee is not entitled to a charge even on the shares of the mortgagors in the 
property : Narain Prasad v. Samam Singh (1917) 44 I.A. 163, 39 All. 600, 40 I. C. 284, 
(’17) A.PC. 41. 

Mahabeer Peraad’S case. — In 3Iahabeer Persad V. Ramyad (1878) 12 Beng. L.R. 
90, the father and magiager of a joint family governed by the Mitakshara mortgaged 
the family property to secure a loan of Rs. 3,000 obtained by him for his personal benefits. 
The mortgagor had two sons, one of whom was a minor. The elder son had assented 
to the transaction. The elder son sued on his own behalf and on behalf of the minor 
to set aside the mortgage. The Court held — and this constituted the special feature 
of the case — that the father and the elder son had obtained the loan by representing that 
they had power to charge the joint family property, which they knew they did not 
possess. The mortgage was declared bad, but the learned judges who decided the case 
thought themselves at liberty to put a condition that, on recovery, the property be held 
and enjoyed by the family in defined shares, vh., one- third belonging to the father, 
one-third to the elder son, and one-third to the minor, and that the shares of the father 
and of the elder son be jointly and severally subject to the lien thereon of the mortgagee 
for the repayment of the loan of Es. -3,000 and interest thereon until repayment. By so 
doing, the Court in substance, ordered by its decree a partition of the property so that 
the separate shares to be obtained under the partition of the father and the elder son 
should be made available to meet the claim of the mortgagee. The line of reasoning 
adopted by the Court was that the father and the elder son were entitled at any moment 
to claim a partition, and having made the representation that they had power to charge 
the property, they were bound to make good the representation and that could be done 
by a partition. Upon this decision the Judicial Committee remarked: “There appears 
to be little substantial distinction between the law thus enunciated and that whiol^ 
has been established at Madras and Bombay ; except that the application of the former 
may depend upon the view which the judges may take of the equities of the particular 
case whereas the latter establishes a broad and general rule defining the right of the 
creditor” (A). In Madho Pershad’a case (1890) 17 LA. 194, 18 Cal. 167 [ill. (2)], Lord 
'SVatson declined to apply the rule in Mahabeer Persad'a case on the ground that no 
analogy existed betw'een the latter case and the case before the Board. In the recent 
case of Narain Persad v. Sarnam Singh (1917) 44 I.A. 163, 166, 39 All. 600, 40 I.C. 284, 
(’17) A.PC. 41 [ill. (3)], the Judicial Committee appear to confine the applicability of 


s. m 


(A) Been Dayai v. Jnijiieep Naram (1877) 4 I.A. 217. 255, 3 Cal. 198, 209. 



328 


HINDU LAW. 


Ss. the rule in Mahabeer Persod's case to cases where an express representation has been made 

27fi Lordships declined to hold that such a representation was to be implied in 

*05, */U cases, and observed; “Whether that particular case (i.e., Mahabett Persod’s case) 

was rightly decided or not it is not necessary to consider here, because the learned judges 
proceeded upon the footing that there had been the representation referred to. On 
looking at the facts their Lordships agree with the observation of Mr. Parikh that there 
was very little, if any, evidence of such a representation, but that there was such a rtpreseri’ 
tatioyi was the basis of the judgment^ and unless, the learned judges had held that an equity 
arose out of it, their judgment would have amounted to this, that for every mortgage 
by the head of a joint family the property of the joint family could be made available 
to the extent of the interest of the mortgagor. Now whatever may happen when there 
are special circumstances, such as there were in the case referred to, that is not the general 
law.” This decision was followed by the Judicial Committee in Anant JRam v. Collector 
ofEiah (1918) 40 All. 171, 44 LC. 290, (’17) A.PC. 188. The result is that the rule in 
Makabir Persad's case can no longer be applied except in cases where special circum- 
stances, such as an express representation, exist. 

Lease. — A lease stands on the same footing as a sale or mortgage (i). 

Mesne profits on setting aside alienation.— Where the purchaser from a 
coparcener has entered into possession, he may be icquired to pay mesne profits from 
the date of repudiation of the sale by the other coparceners (J). 

270. Objections to alienations by coparceners existing ^orn 
or conceived) at the time of the alienation.— (ijWhere an aliena- 
tion is made by a coparcener in excess of his powers, it may 
be set aside to the extent mentioned in ss. 268 and 269 at 
the instance of any other coparcener who was m existence 
at the time of the completion of the alienation (k). It may also 
be set aside at the instance of any coparcener who, though born 
subsequent to the date of alienation, was in his mother's womb 
at the date of alienation ; the reason is that under the Hindu 
law a son conceived is, in many respects, equal to a son born if). 

lllusiraiiiyns. 

(a) Ay governed by the Mitakshara law, makes a gift of certain ancestral property 
to B. A has no son at the date of the gift, but a son is bom to him two months later. 
The gift may be set aside at the instance of the son, as he was in his mother’s womb 
at the date of the gift. The transaction being a gifty it will be set aside altogether, and 
not merely to the extent of the son’s share [s. 2671; Jiamanna v. Venkata (1888) 11 
Mad. 246. 

(b) Ay governed by tho Mitakshara law as applied in Madras, sells certain ancestral 
property to B without legal necessity. The sale may be sot aside at the instance of a 
son who, though born subsequent to tho date of sale, was in his mother’s womb at the 
time of sale. It will not, however, be set aside altogether but to the extent only of the 
son’s interest in the property [s. 268]: Sabapafhi v. Somasutidaram (1893) 16 Mad. 76. 

(c) A and his son B are members of a joint family governed by the Mitakshara law. 
A sells certain ancestral property to O including B’s interest therein, without jB’s consent 
to pay an antecedent debt of his not contracted for immoral or illegal purposes. The sale 
is valid in its entirety. It cannot be impeached by By for it is made to pay his father’s 
debts [s. 295] : see Girdharee Lall v. Kanitoo Ball (1874) 14 Beng. L.R. 187, 1 LA. 321. 

(t) Jadu V. Abdul (1911) 10 C.W.N. 93. 11 I C i 
892. ■ 1 

ij) Bhirgu Nath v. Narsingh (1917) 39 All. 61 I 
35I.C. 475, (’17)A.A. 479. 

(i) Pannambala v. Sundarappayyar (1807) 20 [ 

Mad. 354 ; Narain Das v. Har Dayal « 


(1913) 35 All. 671, 21 I.C. 830. 

(i) Sabapaihi v. SotnaMtndaram (1693) 16 Mad. 
70 (?ale) ; Itamanna v. Venkata (1888) 11 
Mad. 246 [plftl *, Gifdharee Lall v. Kanio 
Lall (1874) 14 BenK. L.U. 187, 1 I.A. 321 ; 
Deo Naraxn v. Qanga Singh (1015) 37 AU. 
102, 26 I.C. 871, (’15) A.A. 65. 



SETTING ASIDE ALIENATIONS. 


329 


At the time of com-pldion of the alienation. — See ill. (a) to aub-a. (2) below, and the 
note appended to the illustration. 

Rights of a son in hia mother'a ioomb. — ^Under the Hindu law a son begotten (or 
conceived, or in his mother’s womb) is eq^ual, in many respects, to a son actually in 
existence. Thus a son in hia mother’s womb- — and this also applies to a daughter — is 
entitled to inheritance^ if bom alive. He is also entitled to a share on partition. Further, 
he is entitled to take coparcenary property by survivorship as against a legatee of such 
property under his father’s will. That is to say, just as a son living at the time of his' 
father’s death is entitled on hia father’s death to take coparcenary property by survivor- 
ship, so is a son who is in his mother’s womb at the time of the father’s death. The 
father cannot bequeath coparcenary property to a third person so as to defeat the son’s 
right of survivorship whether the son was in existence at the time of his death or was in 
his mother’s womb at the time [s. 256]. Lastly, an alienation that can be impeached by 
a son actually existing at the time of alienation can also be impeached by a son who was 
in his mother’s womb at the time. There is, however, one case in which the Hindu law 
does not treat a son in his mother’s womb as a son in esse and that is as regards adoption. 
Thus a father cannot adopt when he has a son living. But he can adopt though his wife 
is pregnant at the time of adoption and she is subsequently delivered of a son (m). 

(2) By after-born coparceners . — ^An alienation of joint 
family property made by a father, there being no male issue 
in existence at the date of the alienation, is valid though 
made without legal necessity. Such an alienation cannot 
be objected to by a son born after the date of the alienation 
on the ground that it was made without legal necessity («.). 
But an alienation made by a father who has sons then living 
not being one for legal necessity, or for payment of an ante- 
cedent debt, if made without their consent, may be set aside 
by one of those sons — partially or wholly according to the 
province in which the question arises (ss. 259 and 260). If all 
the sons living at the time of the alienation predecease their 
father and no other son is born before the death of the last 
of them so that the father remains the sole coparcener for some 
time, then the alienation is not liable to be impeached by after- 
born sons (o). If, before the sons alive at the time of the 
ahenation are all dead, another son is born, in the provinces 
referred to in s. 260, the alienation may be set aside at the 
instance of the latter also (j>), unless before his birth, the 
former ratified it {q), or their cause of action is lost by 


(m) Banmant v. llamchandra (1887) 12 Bora. 

105. 

(n) Bhola Nath v. Kartick (1907) 84 Cal. 872; 

Suraj Prazad v. Makhar Lai (1922) 44 
All, 382, 385, 60 I.C. 134. ('22) A.A. 51. 

(o) Bitendra v, Sukhdeo (1929) 8 Pat. 658, 115 

I.C. 886, (’29) A.P. 300 ; Mukund Sinrjh 
V. Wajirruddin (1933) 149 I.C. 600, 
(’33) A.L. 359 ; Visiwsivara Rao v. Surya 
Rao (1930) 69 Mad. 667, 163 I.C. 712, 
(’30) A.M. 440. 


(j?) BunioariLalv. Dayasankar (1909)13 C.W.N. 
815, 822 ; Tutshiram v. Babu (1911) 33 All 
654, 1 I,C. 908 ; Bhup Kunwar v. Balbir 
Sahai (1922) 44 AU. 190, 64 I.C. 885, (’22) 
A.A. 342 ; Dwarka Das v. firisAan (1921) 2 
Lah. 114, 110-120, 61 I.C. 628, (’21) A.L. 
34 ; Bkagwat Prasad Bahidur v. Deiichand 
Bogra (1941) 20 Pat. 727, 199 I.C. 408, 
(’42) A.P. 99. 

(«) ChuUan Lai v. Kallu (1911) 33 All. 283, 8 
I.C. 719. 


S.270 



330 


HINDU LAW. 


S. 270 limitation (r). But in the provinces referred to in s, 259, if the 
cause of action of the coparceners who did not consent to the 
alienations is barred, the alienation becomes unimpeachable (s). 

If the coparcener is born before their right is barred, 
he becomes a coparcener with them in the property, the title 
to which is not yet lost by the adverse possession of the ahenee 
and all of them can sue to recover their shares or the after- 
born coparcener alone can sue to recover his share. It is sub- 
mitted that the principle of the decisions in f.n. (p) on p. 329 applies 
to these provinces also ; the only difference being that, in the 
provinces referred to in s. 260 the whole alienation may be 
set aside whereas in the provinces in s. 259 the plaintiffs can 
only recover their share or shares. But an opposite decision 
has been arrived at in Bombay and Nagpur (s). The Bombay 
decision is based on Lai Bahadur v. Ambika Prasad (t) and 
the Nagpur decision. 

In that case two brothers A and B effected in 1 895 ( 1 ) a simple 
mortgage; (2) a usufructuary mortgage. At that time A had 
two sons C aged thirteen and D aged three. In 1904 a sale 
was effected by A and B (1) to discharge amounts due on 
certain decrees, (2) to discharge the usufructuary mortgage, 
(3) to pay off interest on the simple mortgage, and (4) for cash 
paid to the vendors utilised for certain purposes found to be 
valid and binding. In 1919 C's sons sued to set aside this 
sale off 1904. The Judicial Committee found that the sale 
was made to pay off the mortgage debts and for other purposes 
binding on the plaintiffs and dismissed the suit. It may 
here be mentioned that C was living in 1919. He nev^er 
questioned the binding nature of the usufructuary mortgage 
and any suit by him for that purpose would have been barred 
by 1907. As to the simple mortgage, whether valid as a 
mortgage or not it was at least an antecedent debt of .4. So 
far the case presents no difficulty. 

But there are one or two observations in the judgment which 
seem to suggest that the plaintiffs, not being born in 1895, could 

(r) Rajafiamv. It»cAma,i(lS«7)8W.R IS, 21 i i/fy. Co.,nil v Patel Shaicirat>haia9i3} 

Lachmi Namin r. Euhan (1316) 38 All Bom. 123, 21 I C 122. ('13) A.B. 239, 

126, 33 I.C. 913 ; Rano^tp Sin'jh v, 45 Bom, 1, 3i. 507 • Bahadur Sindh v. 

fararmehu-ar Pershad (1323) 52 (.A. 63. (Jiriharlal 11942) 543, 200 1 C. 106, 

4. All. 165, 80 I. C. 249 (’25) A.PC. 33. (’42) A.N. 39. 

(t) XiuhirMth V. Baprao (1940) Jfag, 573, 191 ' (() (1925) 52 I A 443, 47 All. 795, 91 I C. 471, 

I.C. 2, 1, (AO) A.N. 305 , 9u)>a(A Oil AKRl ■ (’25) A.PC. 264. 



SETTING ASIDE ALIENATIONS. 331 

never question the mortgages. These observations must be under- 
stood with reference to the facts of the case, namely, that the 
father’s right to question the mortgages was barred by 1907 and 
1916, there being only one cause of action for all the coparceners. 
The case cannot be regarded as an authority for the proposition 
that the after-born coparceners cannot question the mort- 
gages even before the father’s right to do so became barred, 
such conclusion being inconsistent with the decisions in f.n. 
(p) on p. 329 which were not referred to. The learned editor of 
Mayne’s Hindu Law (10th edn.) gave certain reasons in 
support of the same view (p. 512) and the whole passage was 
quoted with approval in Bhagavathi Prasad v. Devichand 
above cited in f.n. (p) onp. 329. It may be incidentally pointed 
out that there is no conflict between the Patna case just referred 
to and the decision in Visweswararao v. Surya Rao {supra) 
f.n. (o) onp. 329 asFazl Ah, J. seems to suppose. In the Madras 
case there is a gap between the death of the coparcener existing 
at the time of the alienation and the birth of the plaintiff, 
during which the father was the sole owner. But there is 
no such gap in the Patna case. Varma, J. observed “Nandalal 
died when Amruthlal was 5 or 6 years of age and the interest 
of Amruthlal in the joint family property which he got when 
Madhusudan and Nandalal were alive and which passed 
to him after the death of Madhu Sudan and Nandalal hy 
survivorship was not affected by the mortgage.” In the 
Bombay case it is observed “ Nor could he continue as heir 
or legal representative of plaintiff No. 1 since the father 
defendant No. 2 is alive and the nearer heir.” It is submitted 
that the plaintiffs Nos. 1 and 2 were members of the joint 
family and there is no question of heirship. Plaintiff No. 2 
got the right of Plaintiff No. 1 by survivorship as pointed out 
by Varma, J. in the Patna case. 

In the Nagpur case Stone, C. J. referring to Lai Bahadur 
V. Amhika Prasad says, “We feel that this case on the point' 
under discussion is not binding on us. Nevertheless it con- 
tains an observation (namely, that the alienations are binding 
on the after-born) to which weight must be attached because 
it constituted a step necessary to the conclusion namely that 
these were binding antecedent debts.” Here it may be ob- 
served that whether the mortgages were valid or not they would 
be certainly antecedent debts. A little before the passage 


5. Z7U 



332 


HINDU LAW. 


S. 270 quoted, Stone, C. J. quotes the case as authority for proposition 
XV. — “ if the cause of action is allowed to become time-barred 
no son born after the cause of action is time-barred can sue’' 
and not for the proposition that the after-born son cannot 
sue even before the suit is time-barred. It is therefore sub- 
mitted that the Bombay and Nagpur decisions are not correctly 
decided and the decision in the f.n. (p) on p. 329 wiU apply 
ec en to the procdnces mentioned in s. 259. 

The remarks of the Madras High Court in Raja Fosi 
Reddi v. LaJcshrai Narasimham (w) on this point are obiter as 
the point did not arise in this case. 

Illustrations. 

(a) -.i, governed by the Mitakshara law, sells certain ancestral property to B. A 
has no son either bom or begotten at the time of the sale. The sale is made withont 
legal necessity. The sale is raliA, though made without legal necessity, for the restric- 
tion that a coparcener should not sell coparcenary property without legal necessity 
applies only when there are oiher coparceners living at (he time Therefore if a son C 
is hom to A two years after the date of the sale, he cannot impeach the sale. Even 
if there was a son existing at the time of the sale, if the sale had been made with his 
consent, it would have been valid when made, and therefore not liable to be set aside 
by C. 

yoie. — The above case assumes that there has been a comjihte transfer of the pro- 
perty to the purchaser. If the transfer is not complete, as where there is a mere agreement 
to sell, and a son is born before the sale is completed, the son is entitled to have the 
sale set aside in its entirety if the parties are governed by the Mitakshara law as applied 
in Bengal and the United Provinces, and to the extent of the son’s interest, if they are 
governed by that law as applied in Bombay and Madras [see sub-sec. ( J) above]. 

(al ) A who has a son sells certain ancestral property to C without B'b consent 
and without justifying necessity. B then dies. A year after B'b death a son D is bom. 
D cannot impeach the alienation. 

(b) A, who has a son B» sells certain ancestral property to C, icHhout B'& consent 
and ivitlioui justifying necessity. Two years later, while B is living, another son D is 
bom to A. In province.? referred to in s. 260, the sale not being valid when it ivas made, 
Jj also is entitled to have it set aside. But if the sale is ratified by B before the birth 
of L>, D cannot object to the sale, for ratification validates a sale as much as consent. 
But no ratification by B after D'b birth would deprive D of the right to object to the 
sale : Tulshiram v. Babu (1911) 33 All. 654, 10 I.C. 908, see also Haroddoi v. Beer A^arom 
(1809) 11 W.R. 480. 

(c) A, his son B, and C alleged to have been adopted by A’e paternal uncle as his 
son, are members of a joint family. During B's minority, A and C divide the family 
property between them, A transferring certain family property to C. A son D is sub- 
sequently bom to A,. B and D sue A and C to recover from C the property transferred 
to him by A alleging that though C was treated by A as the adopted son of his uncle, 
hi.s adoption was invalid, and he was not therefore entitled to any share of the family 
property. It is clear that if C’s adoption was not valid, the transfer to him of a portion 
of the family property would not be valid, unless it could be supported as a bona fide 
compromise of a disputed claim. Hence in provinces referred to in s. 260 B aa well as 


tJf) Mad. 913, ('4U) A. M. ttfll. 



SETTING ASIDE ALIENATIONS. 


333 


D are entitled to impeach the alienation : sea Ramkishore v. Jainarayan (1913) 40 Cal, 
966, 40 LA. 213, 20 I.C. 958. 

In ills, (b) and (c), in the provinces referred to in s. 259 if B files a suit on behalf 
of the family excepting the alienor, D may participate in the benefit of the decree as a 
member of the joint family. 

(3) An alienation, valid when it was made, cannot be 
impeached by a son adopted after the date of alienation (a). 

(4) Where an alienation is made in Allahabad of joint 
family property by an individual coparcener as distinguished 
from tho whole body of coparceners, the question arises as 
to who is entitled to impeach the alienation [see s. 269]. The 
following is a statement of the law as settled in that 
Province : — 

(i) The right to impeach an alienation made by an 

individual coparcener is not confined to the 
non-alienating coparceners only. It may also be 
exercised by a subsequent transferee who has 
acquired by transfer or by limitation the entire 
interest of the whole joint family in the property 
alienated {w). 

(ii) The alienor himself cannot impeach his own 

alienation ; nor can a subsequent transferee 
by private contract of the interest only of the 
alienor. But a purchaser, though it be of the 
alienor’s interest alone, at a sale in execution 
of a decree against the alienor, is entitled to 
impeach a previous alienation made by the 
ahenor (x). 

(iii) The reversionary heir to the estate of a non-ahenat- 

ing coparcener is also entitled to impeach an 
alienation made by another coparcener {y). 

(iv) A prior mortgagee of joint family property from 

, a single coparcener is not entitled to impeach 
a subsequent sale of that property (z). 


(y) iSadanatid v. Soorjoanwnee (1809) 11 W.R. 
436 ; Rambhai v. Lakshman (1881) 5 Bom. 
630 : Brij Ra] Saran v. Allianre Bank 
■ of Simla (1936) 17 Lah. 686, (’36) A.L. 
946. 

(/f) Muhamm-id v Mithn Lai (1911) 33 All. 783, 
11 I.C. 220 [F.B.]; Inayai v. Rardeo 
(1923) 45 All. 092, 74 I.C. 325, (’24) A 
A. 29 ; Madan Lai v. Gajendra Lai (1929) 
51 All. 575, 116 I.C. 436, (’29) A.A. 243; 
Madan Lai v. Chiddu (1931) 53 All. 21, 
128 I.C. 829, (’30) A.A. 852 ; Ram KUhore 


V, Baijnalh (1928) 3 Luck. 598, 113 I.C. 
410, ('28) A.O. 287 ; Kharag Narayan 
V. Janki Rai (1937) 16 Pat. 230, 169 I.C. 
900, (’37) A.P. 546. 

(a-) (1931) 53 All. 21, 123 I.C. 829, (’30) A.A. 
852, supra. 

(w) Sarja Prasad v. Atangal (1925) 47 All. 490, 
87 I.C. 294, (’25) A.A. 339 ; Jaipal Singh 
V. Lachman Singh (1934) 9 Luck. 657, 
149 I.C. 543, (’34) A.O. 246. 

(?) Diirga Prasad v. Bhajan (1920) 42 All. 60, 
58 I.C. 481, (’19) A.A. 6. 


S.270 



334 


HINDU LAW. 


Ss. 

270,271 


IllustTalicms. 

(a) A, the manager of a joint family, mortgages joint family property to B. A 
then sells rhe property to G. C remains in possession of tho property adversely to the 
Khole family for upwards of 12 years. C, having acquired ownership of the whole 
property by adverse possession, is entitled to challenge the validity of the mortgage 
to JS on the ground that it was made without legal necessity (a). 

(b) The father of a joint family executes a mortgage of joint family property. 
He then sells the property to meet an antecedent debt. The purchaser, being a transferee 
of the entirr interest in the poperty, is entitled to impeach the mortgage on the ground 
that it was made without legal necessity. 

(c) A, the manager of a joint Hindu family, executes a mortgage of joint family 
property. Subsequently all the coparceners join in selling the property to B. B, being 
a transferee of the interest of alt the coparceners, is entitled to impeach the mortgage 
on the ground that it was made uitliout legal necessity. 

(d) A and his son B are members of a joint Hindu family. A executes a mortgage 
of joint family property to C. Thereafter A dies. B dies next. On B's death his mother 
succeeds to the property for a widow’s estate. C sues B'a mother on the mortgage and 
obtains an ex parle decree against her. The mother then dies, and on her death B’s 
uncle B succeeds to the property as tho next reversionary heir of B. D is entitled to 
challenge the validity of the mortgage to C on tho ground that it was made without legal 
necessity. The decree obtained by C against the mother would bo binding on D unless 
it was obtained by fraud or collusion (6). 

(e) A, the manager of a joint Hindu family, executes a mortgage of joint family 
property to B. He then sells the property to C. C sues B for redemption. B is not 
entitled to impeach the sale on the ground that it was made without legal necessity (6). 

According to some Privy Council rulings and a Full Bench ruling of the Allahabad 
High Court, an alienation made by a single coparcener neither for legal necessity nor 
for the paj'ment of an antecedent debt is com/. According to later decisions of that 
Court, such an alienation is voidable : see s. 260 (I). If it is voidable, it is valid until 
it is set aside. Most of the cases cited in sub-sec. ( 4) proceeded on the footing that the 
alienation was voidable. This gave rise to the question as to whether the non-alienating 
coparceners alone were entitled to avoid it or others also. The answer is as stated in 
sub-sec. {4). If the alienation is void, it confers no title on the alienee, and most of the 
difficulties which arise if tho alienation is treated as voidable especially where the aliena- 
tion and the subsequent transfer are both made by the same coparcener disappear 
altogether, and the subsequent transferee would be entitled to contend as a matter of 
course that the alienation is a nullity (c). 


271. Limitation for setting aside sales. — (i) The period of 
hmitation for setting aside an alienation by a father of joint 
family property i.s twelve years from the date when the alienee 
takes possession of the property [Limitation Act, 1908, Sch. I, 
art. 126]. 

(2) The bar of limitation against an elder son who was a 
major at the date of the alienation by the father does not 
operate as a bar against a younger son, who was then a minor 


(а) Muhammad v. Mithu Lai (1911) 33 AH 783 i 

11 l.C. 220 

(б) Sarju Prasad v. Mangal (1925) 47 All, 490, 

87 l.C. 294, ('25) A A. 330. ' 


{c) See the jiidgraent of Chamier, J., In Muham- 
mad V. Mithu Lai (1911) 33 AH. 783, 
790-791, 11 l.C. 220 (F.n ]. 



SETTING ASIDE ALIENATIONS. 


335 


and brings a suit to set aside tbe alienation within three years 
of his attaining majority (d). 

Illustration. 

A and his sons B and 0 are members of a joint Hindu family. In 1906 A sells one 
of the joint family properties to Z), and delivers possession of the property to him. B 
was a major at the date of the sale. C was bom in 1900 and he attained majority in 
1918. C brings a suit against the father and D in 1919, that is, within 3 years of his 
attaining majority, to set aside the sale. If B had sued in 1919, his suit would have been 
barred. The failure of 5 to bring a suit within the period of limitation does not bar C*B 
suit (e). [C’s suit, it will be noted, is not barred by limitation.] 

(3) But if an elder son becomes the manager and so 
capable of giving a discharge the bar against the elder son 
would bar the younger son also (/). 

{4) The cause of action in a suit to set aside the father’s 
alienation arises when the alienee takes possession of the 
property. The period of twelve years is therefore to be counted 
from that date. That is the material date not only as regards 
the suit of a son in existence at that date, but also the suit of a 
son not in existence at that date. The extension of three 
years given by sec. 6 of the Limitation Act cannot be availed 
of by the sons not in existence at the time of the alienation (g). 

Illustration. 

A and his sons B and C are members of a joint Hindu family. In 1893 A sells one 
of the joint family properties to D and delivers possession of the propert^to him. In 
1900 another son E is bom to A. In 1920 E brings a suit against D to set^ide the sale. 
The suit is barred as it is brought more than 12 years from the date on which D took 
possession. The period of limitation is not to be computed from the date of fi^’s birth. 
If it were to be computed from the date of £”s birth, the suit would not be barred, as 
it was brought within 3 years from his attaining majority {g). 

271A. Limitation. — A suit by Hindu to set aside an aliena- 
tion of joint family property made before his birth by his 
grandfather without any justifying necessity is governed not 
by art. 126 but by art. 144. But the same principles apply. 
If the suit is brought more than 12 years after the date of 
alienation it is barred {h). 

Note ’ — It may be noticed that the maintainability of the suit was assumed by the 
Judges and Advocates. 

{(i) Jawahir Singh v. Udai Prahash (1920) 53 
I.A. 36, 48 AU. 152, U3 I.C. 216, (’26) 

A. PC. 16, approving Ganga Dayal v. 

Mani Pam (1909) 31 All. 156, 1 I.C. 824, 
and disapproving Vignessiara v. Bapayya 
(1893) 16 Mad. 436, and Doraisamt v. 

Nondxsami Salunvan (1915) 38 Mad. 118, 

21 I.C 410, (’]5) A.M. 1201. 

(f) 53 I.A. 30, 48 All. 152, 93 I.C. 216, ('26) 


A. PC. 16, sxipra. 

(/) Karan Singh v. Mt. Tetar Kiier (1937) 
16 Pat. 422 (F.B.), 170 I.C. 362, (’37) 
A.P. 435. 

(g) Panodip Singh v. Parmexhwar Pershad 
(1925) 52 I.A. 69, 47 All. 105, 86 I.C. 
249, (’25) A. PC. 33. 

(-'<) Jivaji Kefthav w ]'cnkatesh Krishna (1940) 
Bom. 109, 108 I. C. 063, (’40) A.B. 136. 



336 


Ss. 

272,273 


CHAPTER XIII. 

COPARCENERS AND COPARCENARY PROPERTY- 
DAYABHAGA LAW. 

272 . Distinguishing features of Dayabhaga joint family.— 
The conception of a coparcenary and of coparcenary pro- 
perty according to the Dayabhaga law is entirely distinct 
from that according to the Mitakshara law. The object of this 
chapter is to state the points of distinction between the Mitak- 
shara law and the Dayabhaga law, such as have been noted in 
the Dayabhaga and in judicial decisions. As to the points 
on which the Dayabhaga is silent, the rules of the Mitakshara 
law are to be applied so far as they are applicable ; for, even in 
Bengal the Mitakshara is accepted as a high authority, yielding 
to the Dayabhaga only in those points where they differ (i). 

Besides the Dayabhaga, there are two works which also deal with the respective 
rights oi a lather and sons in ancestral property, and w'hich are of authority in Bengal. 
They are (1) the Dayatattw.i and (2) the Dayakrama Sangraha, the former written 
by Raghunadan who flourished in the 16th century, and the latter by Sree Krishna 
Tarkalankar who flourished in the 18th century. Both these are treatis''s on the law of 
inheritance. 

273 . Sons do not acquire any right by birth. — According 
to the Mitakshara law, each son acquires at his birth an 
equal interest with his father in all ancestral property held by 
the father, and on the death of the father the son takes the 
property, not as his heir, but by survivorship (ss. 224, 229). 

According to the Dayabhaga law, the sons do not acquire 
any interest by birth in ancestral property. Their rights arise 
for the first time on the father’s death. On the death of the 
father they take such of the property as is left by him, whether 
separate or ancestral, as heirs and not by survivorship (j). 
Since the sons do not take any interest in ancestral property 
in their father’s lifetime, there can be no coparcenary in the 
strict sense of the word between a father and sons according 
to the Dayabhaga law, so far as regards ancestral property. 

“ Sons have not a right of ownership in the wealth of the living parents but in the 
estate of both tvhen deceased.** — Dayabhaga, chap, i, aec» 30. 

The above passage shows that a son has no more vested interest in ancestral property 
held by hie father than he has in property held by his mother. In other words, all heritage, 
according to the Dayabhaga law, is obstructed {s. 219]* 

(i) Collector of Madura v, Mooitoo Ramalinga \ Akahay Das <190&) 3u Cal. 721. 

(1868) 12 M.I.A. 397, 405; Jihugwindeen {j) Dayabhaga, ’vhap. 1, secs. 11-31, 38. 44. 50, 
V. afyna Bofc (1867) 11 M.L.A. 487, 507 ; 1 chap, ll, sec. 8. 



COPARCENERS. 


337 


Though there cannot be a coparcenary property, bo called, between a father and 
sons according to the Dayabhaga law as regards ancestral property, it is suggested by 
some writers that a father and sons may acquire property jointly, and may thus form 
themselves into a coparcenary. It is difficult to say how far this view is correct. 

274. Absolute power of father to dispose of ancestral 
property. — Since the sons do not, according to the Daya- 
bhaga law, acquire any interest by birth in ancestral property 
held by the father, the father can dispose of ancestral property, 
whether moveable or immoveable, by sale, gift, will or otherwise 
in the same way as he can dispose of his separate property {k). 

According to the Mitakshara, the powers of a father to 
dispose of ancestral property are limited [s. 258]. 

275. No right of partition or to accounts against father. — 
Since sons, according to the Dayabhaga law, do not acquire 
any interest by birth in ancestral property, they cannot 
demand a partition of such property, from the father as they 
can under the Mitakshara law, nor can they call for an account 
of the management thereof from the father as they can under 
the Mitakshara law [s. 239]. The father is the absolute owner 
of the property, and the property being his own, he can manage 
it in any way he likes {1). 

Tbe rules as to the management of ancestral property by a manager, given in the 
last chapter, do not apply at all to a father under the Dayabhaga law. The reason is 
that he is not a manager of ancestral property ; he is the OMTier, and sole owner, thereof. 
Besides, the term “ manager ” as used in Hindu law refers to the manager of a coparce- 
nary, and as stated in s, 273, there can be no coparcenary according to the Dayabhaga 
law between a fatlier and sons even as regards ancestral property, 

276. Conception of ancestral property according to the 
Dayabhaga law. — As under the Mitakshara law, so under the 
Dayabhaga law, ancestral property is that which is inherited 
from a father, paternal grandfather or great-grandfather. Under 
the Dayabhaga law, however, the male issue of the inheritor 
do not acquire any interest by birtb in such property, as they 
do under the Mitakshara law [s. 223, sub-sec. (i)]. 

277. Coparceners according to the Dayabhaga law.— 
According to the Mitakshara law the foundation of a copar- 
cenary is first laid on the birth of a son. The son’s birth is the 
starting point of a coparcenary according to that law. Thus 


{k) Ramkishore v. Bhoobunmoyee (1859) Beug. 
8. D. A. 229, 250-251; Vebendra v. 
Brojendra (1890) 17 Cal. 886. The same 
rule applies to property the succession to 
which is governed by the law of primo- 


geniture ; Uddoy v. Jadublal (1880) 5 Cal. 
113 ; yarain v. Lokenath (1881) 7 Cal. 461. 

(I) Dayabhaga, chan, i, secs. 11-31, 88-44, 50, 
V chap. II, see. 8 ‘ 


Ss. 

273-277 



338 


HINDU LAW. 


S. 277 if a Hindu governed by the Mitakshara law has a son born to 
him, the father and the son at once become coparceners (m). 

According to the Dayabhaga law, the foundation of a 
coparcenary is first laid on the death of the father. So long as 
the father is alive, there is no coparcenary in the strict sense 
of the word between him and his male issue. It is only on 
bis death leaving two or more male issue that a coparcenary 
is first formed. His male issue then inherit his property, 
separate as well as ancestral, as his heirs, but as between them- 
selves they hold it as coparceners, and the property inherited 
from the deceased is coparcenary property. On the death of 
any one of the coparceners, his heirs succeed to his share in 
the coparcenary property [s. 281], and they become members 
of the coparcenary. Such heirs, in default of male issue, 
may be his widow or widows, or his daughter or daughters. 
These two, though females, get into the coparcenary, repre- 
senting the share of their husband or father as the case may 
be. A coparcenary under the Dayabhaga law may thus 
consist of males as well as females. Under the Mitakshara 
law, no female can be a coparcener with male coparceners 
[s. 217]. But even under the Dayabhaga law a coparcenary 
cannot start with females. Thus if a person dies leaving two 
or more widows, or turn or more daughters, they cannot 
constitute a coparcenary. 

A, a Hindu, governed by the Dayabhaga law, dies intestate leaving three sons 
Bt C and D. The three brothers will inherit their father’s property, and hold it as co- 
parceners. If B dies leaving a widow, and C dies leaving a daughter, the widow and 
daughter will become coparceners with O, 

Similarly, if A dies intestate leaving a son, a grandson, whose father is dead, and a 
great-grandson whose father and grandfather are both dead, they all will inherit the 
property loft by A (s. 88), and hold it as coparceners. If A leaves a great-great-grandson 
also, he has no right of inheritance to A’ b property, and ho cannot therefore be a 
coparcener with the son, grandson, and great-grandson. 

But if A dies leaving only one son, the son cannot by himself constitute a coparce- 
nary. A must leave him surviving at least two male issue for a coparcenary to be formed 
as between them. 

The formation of a coparcenary does not depend upon any act of the parties. It 
is a creation of the law. It is formed spontaneously on the death of the ancestor. It 
may be dissolved immediately afterwards by partition, but until then the heirs hold 
the property as coparceners. The distinction is this : two or more Mahomcdans, Parsis 
or Christians, succeeding to the estate of a deceased person, take it as co-fieirs, while 
two or more male issue of a Hindu succeeding to the property of their paternal ancestor 
take it as coparceneTs, subject to all the incidtiUs of coparcenary property. 

(7rt) Laldas v. Af<rft&o»(1908) 10 Bom. I,. R. 17."). 



COPARCENERS. 


339 


It will bo seen from what has been stated above that a coparcenary under the Daya* 
bhaga law may consist of brothers, or uncles and nephews, or of cousins and the like, 
but it cannot consist of a father and sons, or of a grandfather and grandsons, or of a great- 
grandfather and great-grandsons. Thus if A dies leaving three sons B, C and I) the 
brothers will be coparceners. If he dies leaving two grandsons, namely, E and F, 

A 

I 


the cousins (i.e., E and F) will be coparceners. If he dies leaving a son D and two grand- 
sons E and F, the uncle [D] with his nephews [E and F] will be coparceners. If he dies 
leaving 5, i), E and F the coparcenary will consist of G and D only. E and F 

do not take any share of the inheritance, as their fathers are alive. Moreover they do 
not take by birth any interest in the property inherited by their respective fathers from 
A [a. 273]. They are not therefore coparceners. But if while the family is still joint, 
B dies leaving E, E will get into the coparcenary, taking B’s share. 

278. Coparcenary property. — under the Mitakahara 
law, so under the Dayabhaga law, coparcenary property may 
consist of ancestral property, or of joint acquisitions, or of 
property thrown into the common stock, and accretions to such 
property (n) [ss. 223, 227, 228]. 

279. Each coparcener takes a defined share. — The essence 
of a coparcenary under the Mitakshara law is unity of owner- 
ship. The ownership of the coparcenary property is in the 
whole body of coparceners. While the family continues joint, 
no coparcener can say that he is the owner of a definite share, 
one-third or one-fourth. His interest is a fluctuating interest, 
capable of being enlarged by deaths, and liable to be diminished 
by births in the family. It is only on a partition, that he 
becomes entitled to a defined share. Once the shares of the 
coparceners are defined, a partition is deemed to have taken 
place, and the coparcenary is dissolved from that moment. 

On the other hand, the essence of a coparcenary under the 
Dayabhaga law is unity of possession. It is not unity of 
ownership at all. The ownership of the coparcenary property 
is not in the whole body of coparceners. Every coparcener 
takes a defined share in the property, and he is the owner of 
that share. That share is defined immediately the inheritance 
falls in. It does not fluctuate with births and deaths in the 
family. Even before partition any coparcener can say that 


Ss. 

277-279 


(n) SreemiUty Soor)$emoon 0 y Vosse* v. i)mo!>Kn({oo (1856) 6 M. I. A. 526, 539. 



340 


HINDU LAW. 


Ss. 

279-281 


lie is entitled to a particular share, one-third or one-forth. 
Thus if A dies leaving three sons, B, C and D, each son will 
take one-third, and each one will be the owner of his one- 
third share. The sons are coparceners in this sense that their 
possession of the property inherited from A is joint. It is 
the unity of possession that makes them coparceners. So 
long as there is unity of possession, no coparcener can say 
that a partieular third of the property belongs to him ; that 
he can say only after a partition. Partition then, according 
to the Dayabhaga law, consists in splitting up jomt possession 
and assigning specifie portions of the property to the several 
coparceners. According to the Mitakshara law, it consists 
in splitting up joint ownership and in defining the share of 
each coparcener. 

No doubt, a coparcenary under the Mitakshara law also 
is characterized by unity of possession, but that is only an 
appendage to the unity of ownership. Such being the case 
it is not necessary to constitute a partition under that law 
that the unity of possession should also be destroyed and specific 
portions of the property assigned to the coparceners. It is 
quite enough if the unity of ownership is destroyed, and the 
share of each coparcener defined, so that any one coparcener 
can say that he is the owner of a definite share, one-third or 
one-fourth. Nothing further need be done. The members 
may continue joint in possession, but the coparcenary is 
dissolved. Thenceforward the share of each member will on his 
death pass to his heirs. The members having separated the 
principle of survivorship ceases to apply [ss. 322, 325]. 

280. Rights of purchaser of coparcener’s interest in 
execution. — Since a coparcener under the Dayabhaga law 
takes a defined share in the property, a purchaser at a Court- 
sale of his share is entitled to be put into physical possession of 
that share (o). As to Mitakshara law, see sec. 289. 

281. No right of survivorship. — As every coparcener 
under the Dayabhaga law takes a defined share of the copar- 
cenary property, his share wall on his death pass to his heirs 
in the order mentioned m section 88, and not to his coparceners 
by survivorship. 


(o) Kooniour Bt'toy v. Shama Hoonduree (1865) 
SW. £. 80; Eshan Chvnder v. 


Sund Coouwr (1867) 8 W. K. 230. 



COPARCENERS. 


341 


Under tlie Mitakshara law, no noparcener takes a defined 
share in the coparcenary property, and his interest on his death 
passes to the surviving coparceners and not to his heirs 
(s. 229). 


282. Absolute power of coparcener to dispose of his 
share. — Since every coparcener under the Dayabhaga law 
takes a defined share of the coparcenary property, it follows 
that a coparcener governed by that law can alienate his share 
by sale or mortgage, or dispose of it by gift or will, in the same 
manner as he can dispose of his separate property (p). On his 
death intestate, his share will go to his heirs in the order 
prescribed in section 88. See sec. 281. 

No coparcener can, according to the Mitakshara law, 
dispose of his interest in the coparcenary property either by 
gift or by will, nor can he alienate it by sale or mortgage except 
in the Bombay and Madras Presidencies [ss. 259-260]. 

It haa been held that where the ahare of a coparcener governed by the Dayabhaga 
law is sold in execution of a decree passed against him, the purchaser is entitled to be 
put into joint possession with the other coparceners {</). Similarly, it has been held 
that a coparcener may lease out his own share, and put his lessee in possession (r). 


283. Manager and his power. — It would seem that the 
powers of a manager under the Dayabhaga law are the same 
as those of a manager under the Mitakshara Law (s). He 
can contract a debt for a joint family purpose, and a decree 
passed against him for such a debt as manager will bind the 
other members, though they are not parties to the suit (<) 
[s. 253]. He can also mortgage the family property for the 
purposes of the family business (u) [s. 242]. In a suit on a 
mortgage by two managing members of the family for a debt 
due by the family, the other members will not be liable until 
the remedy on the mortgage is exhausted. After the mort- 
gaged properties are brought to sale, the other members may 
be liable (v). 

284. Enjoyment of coparcenary property,^ — Since every 
coparcener under the Dayabhaga law takes a defined share 
of the coparcenary property, he is entitled to make any use 


(p) Koiinlu V. /lam Jluree (1S27) 4 Beug. Sel. I 
li. 190 (new cd. 247) ; Anunchand v. 
Ex$hen (1305) 1 Beng. Sel. B. 115 (new cd, 
153). 

(a) llajanxkanih v. Ham Nath (1884) 10 Cal. 
244. 

(r) Ram Debut v. SlUtetjcel (1872) 17 IV. R. 
420 : Macdonald v. Lalla Shxb (1873) 21 
■W. R. 17. 


(«) But see Balakrishna v. A/ufftasami (1909i 
32 Mad. 271, 274, 3 I. C. 878. 

U) DicarJca Nath v. Bungshi (1905) 9 C.IV. N. 
879. 

(tt) Betnola v. Mohun (1880) 5 Cal. 792. 

(») Sukhadakanta Bhattacharjya v. Jojineekanta 
Bhattacharwa (1933) 00 Cal. 1197, 149 
T C. 878, (’34) A.O. 73. 


Ss. 

28^284 



342 


HINDU LAW, 


Ss. he likes of the portion of the coparcenary property in his 

284-286 occupation (w). He may even lease out his share, and put his 

lessee in possession (x). But he must not do any act which is 
injurious to the coparcenary property [y), or which amounts to 
an infringement of the right of the other coparceners. Thus, he 
cajmot enter into possession of a specific portion of joint 
agricultural land without the consent of the other coparceners, 
and claim to cultivate it for his own benefit (z). But if he is 
in occupation of a specific portion of such land by consent 
he may cultivate it in a proper course of cultivation, and 
appropriate the income for his sole use (a). 

285. Coparcener's right of partition — As under the Mitak- 
shara law, so imder the Dayabhaga law, every adult copar- 
cener has a right to call for a partition of the coparcenary 
property (b). 

286. Presumptions as to coparcenary property. — The pre- 
sumptions with regard to joint family and joint family property 
which apply to cases under the Mitakshara law would seem to 
apply also to cases under the Dayabhaga law [s. 233]. But 
there is no presumption under the Dayabhaga law that 
property purchased by a son in his name in the father’s lifetime 
and of which the son has been in possession since the purchase 
is joint family property. The burden of proof in such a case 
lies on those who deny the ownership of the son (c). Where 
the property purchased by one of the sons is a house, even 
though the father and the sons are living in it, the onus of 
proving that it was thrown into the common stock, or that 
they also contributed to the acquisition, is on the other sons (d). 

In the case cited above, it transpired after the death of the father that certain pro- 
perty stood in the name of one of the sons, who was in possession of it. The other sons 
sued for a partition of the property, alleging that though the property stood in the name 
of^ their brother, it really belonged to the father. The lower Court held that the property 
must be presumed to be joint family property, and that the burden lay on the son in 
whose name it stood to prove that it was his self-acquired property. The High Court 
reversed the judgment, and held that the burden of proof lay on the other sons to prove 
that it belonged to the father. It is clear that there being no joint family during the 
father’s lifetime, the property cannot in any sense be called joint family property. It 
is only after the father’s death that a joint family is formed and it is then that the 
presumptions as to joint family property sot forth in sec. 233 above arise. 


(w) Eshatt Chunder v. A'unrf Coomar (160?) 8 
W K 239 

(r) Ram Debul v. Millerjeel (1872) 17 W. H, 420. 
(y) Gopefi Kiahen v. Hem Chunder (1870) 13 W, 
R. 322 TpulUnc' douna •'ommon verandah], 
(t) StalkaHt v, Gopal (1873) 20 W. R, 168. 

(a) Robert Walaon dc Co. v. Ranwhand (1801) 18 


Cal. 10, 21. 17 I. A. IJO, 120. 

(ft) Sreemulty Soorjeetnonei/ Dos^ee v, T)tno- 
ftundoo (1856) 6 M.T.A 520.539. 

(c) .Sararfa v. Mahananda (1904) 31 Cal. 448. 
(<i) Hemrhandra Ganqxdi v, Matilal Ganyuli 
(1933) 60 C?l. 1253, 140 l.C. 177, (*S4) 
A.C. 68. 



343 


CHAPTER XIV. 

DEBTS— MITAKSHARA LAW 

I. Liability of heirs for debts of ancestor — sec. 288. 

JJ. Undivided interest of coparcenary^ when liable for his debts — sec. 280. 

Ill, Liability of joint family property for father's debts — secs. 290-301. 

287. Contents of the Chapter. — The present Chapter deals 
with “ Debts ”. The subject may be considered under the 
following heads : — 

I. Liability of separate property for debts [s. 288]. 

II. Liability of the undivided interest of a coparcener 

for his debts [s. 289]. 

III. Liability of joint family jnvperty for father’s per- 
sonal debts — ■ 

(i) where the property is sold in execution of a 
decree obtained against the father alone 
[s. 294]. 

(ii) where the property is alienated by the father 
for the payment of an antecedent debt 
[sec. 295]. 

Of debts in general,— -A debt may be contracted by a Hindu male for his own private 
purposeSf or it may be contracted by him for the puYposes of the joint family. Debts 
contracted for joint family purposes have been dealt with in secs. 234, 240-244. This 
and the next Chapter are confined to debts contracted by a Hindu for his own personal 
benefit. The present Chapter deals with the Mitakshara law of debts ; the next Chapter 
with the Dayabhaga law of debts. 

A Hindu may possess separate property. He may also be entitled to an undivided 
interest in coparcenary property. The separate property of a Hindu, whether he is 
joint or separate, is liable for the payment of his debts both in his lifetime and after his 
death. His undivided coparcenary interest is not liable after his death unless it was 
attached or sold in his lifetime. To this, however, there is an exception where a father 
or paternal grandfather or paternal great-grandfather dies leaving private debts. In 
such a case, if the debts are not of an immoral character, the entire joint family property 
including his sons’ undivided interest therein is liable for the payment of his debts even 
after his death, though such interest may not have been attached in his lifetime. The 
reason is that a Hindu male is under a pious obligation to pay the private debts of his 
father, grandfather and great-grandfather, provided the debts are not of an immoral 
character. This is a special liability attaching to sons, grandsons, and great-grandsons 
according to the Hindu law, and it gave rise to several vexed questions which have 
now been settled by recent decisions of the highest tribunal. This liability, however, 
is not a personal liabiliiy, that is to say, their separate property is not liable to pay the 
personal debts of the ancostorj Their liability is confined to their undivided interest 
in the joint family property. 


S.287 



342 


HINDU LAW. 


Ss. he likes of the portion of the coparcenary property in his 
284-286 occupation (tv). He may even lease out his share, and put his 
lessee in possession {x). But he must not do any act which is 
injurious to the coparcenary property (y), or which amounts to 
an infringement of the right of the other coparceners. Thus, he 
cannot enter into possession of a specific portion of joint 
agricultural land without the consent of the other coparceners, 
and claim to cultivate it for his own benefit (z). But if he is 
in occupation of a specific portion of such land by consent 
he may cultivate it in a proper course of cultivation, and 
appropriate the income for his sole use (a). 

285. Coparcener’s right of partition — As under the Mitak- 
shara law, so under the Dayabhaga law, every adult copar- 
cener has a right to call for a partition of the coparcenary 
property (6). 

286. Presumptions as to coparcenary property. — The pre- 
sumptions with regard to joint family and joint family property 
which apply to cases under the Mitakshara law would seem to 
apply also to cases under the Dayabhaga law [s. 233]. But 
there is no presumption under the Dayabhaga law that 
property purchased by a son in his name in the father’s lifetime 
and of which the son has been in possession since the purchase 
is joint family property. The burden of proof in such a case 
lies on those who deny the ownership of the son (c). Where 
the property purchased by one of the sons is a house, even 
though the father and the sons are living in it, the onus of 
proving that it was thrown into the common stock, or that 
they also contributed to the acquisition, is on the other sons (d). 

In the case cited above, it transpired after the death of the father that certain pro- 
perty stood in the name of one of the sons, who was in possession of it. The other sons 
sued for a partition of the property, alleging that though the property stood in the name 
onheir brother, it really belonged to the father. The lower Court held that the property 
must be presumed to be joint family property, and that the burden lay on the son in 
whose name it stood to prove that it was his self-acquired property. The High Court 
reversed the judgment, and held that the burden of proof lay on the other sons to prove 
that it belonged to the father. It is clear that there being no joint family during the 
father’s lifetime, the property cannot in any sense bo called joint family property. It 
is only after the father’s death that a joint family ia formed and it is then that the 
presumptions as to joint family property sot forth in sec. 233 above arise. 


iw) Eihan Chunder v. Nund Coonwr (1867) 8 
W. K. 239. 

(j) Ram Deimlv.MitUrjeet (1872) 17 W.n 420. 
(V) Gopefi KUhen v. Hem Chunder (1870) 13 W, 
R, 822 Tpullinc do^na common verandah], 
(t) Slalkartt V. Oopal (1873) 20 W. R. 168. 

(o) Robert TValson (b Co. v. flaw'Aand (1891) 18 


Dal. 10, 21, 17 I. A. 110, 120. 

(6) Sreemulty Soorjcemoneij Dos^ee v. Deno‘ 
fntndoo (1856) 6 M.T A. 526, 539. 

(c) Sarada v. Mahananda (1004) 31 Cal. 448. 

(d) H»mrhni\<ha Ganrjnli v. Malxlal Gnnouli 

(1933) 60 C?l. 1253, 149 T.C. 177, (’34) 
A.C. 68. 



343 


CHAPTER XIV. 

DEBTS— MITAKSHARA LAW 

/. Liability of heirs for debts of ancestor — sec. 288. 

II. Undivided interest of coparcenary, when liable for his debts — sec. 289. 

III. Liability of joint family property for father's debts — secs. 290-301. 

287. Contents of the Chapter. — The present Chapter deals S. 287 
■with “ Debts The subject may be considered under the 
following heads ; — 

I. Liability of separate property for debts [s. 288]. 

II. Liability of the undivided interest of a coparcener 

for his debts [s. 289]. 

III. Liability of joint family property for father’s per- 

sonal debts — 

(■i) where the property is sold in execution of a 
decree obtained against the father alone 
[s. 294]. 

(ii) where the property is alienated by the father 
for the payment of an antecedent debt 
[sec. 295]. 

Of debts in general. — A debt may bo contracted by a Hindu male /or his own private 
parposesy or it may be contracted by him for the purposes ef the joint family. Debts 
contracted for joint family purposes have been dealt with in secs. 234, 240-244. This 
and the next Chapter are confined to debts contracted by a Hindu for his own personal 
benefit. The present Chapter deals with the Mitakshara law of debts ; the next Chapter 
with the Dayabhaga law of debts, 

A Hindu may possess separate property. He may also bo entitled to an undivided 
interest in coparcenary property. The separate property of a Hindu, whether he is 
joint or separate, is liable for the payment of his debts both in his lifetime and after his 
death. His undivided coparcenary interest is not liable after his death unless it was 
attached or sold in his lifetime. To this, however, there is an exception where a father 
or paternal grandfather or paternal great-grandfather dies leaving private debts. In 
such a case, if the debts are not of an immoral character, the entire joint family property 
including his sons’ undivided interest therein is liable for the payment of his debts even 
after his death, though such interest may not have been attached in his lifetime. The _ 
reason is that a Hindu male is under a pious obligation to pay the private debts of his 
father, grandfather and great-grandfather, provided the debts are not of an immoral 
character. This is a special liability attaching to sons, grandsons, and great-grandsons 
according to the Hindu law, and it gave rise to several vexed questions which hare 
now been settled by recent decisions of the highest tribunal. This liability, however, 
is not a personal liabiliiy, that is to say, their separate property is not liable to pay the 
personal debts of the ancestors Their liability is confined to their undivided interest 
in the joint family property. 



344 


HINDU LAW. 


Ss. 

287,288 


When we speak of the liability of an heir, we are concerned with the aeparate pro- 
perty left by the deceased : and when wc speak, of the liability of a surviving coparcener, 
we are concerned with the coparcenary property in which the deceased coparcener had 
an interest in his Ufetirao. We shall deal, first, with the liability of the htir of a deceased 
Hindu to pay his debts out of the separate property of the deceased [sec. 288]. Next, 
we shall consider whether the coparcener is liable to pay the debts of a deceased 

coparcener out of the coparcenary property, and if so, in what cases [secs. 294-295]. 
We shall see that so far as the liability of an heir is concerned, it does not make any 
difference whether the heir is a son, grandson, or any other relation. The question of 
relationship to the deceased becomes important when coparcenary property is sought 
to be made liable for the debts of a deceased coparcener. 


I. — Linbility of separate property fw debts. 

288. Liability of “heirs” for debts.— As regards the 
liability of an heir of a deceased Hindu to pay the debts of the 
deceased, it is settled law that he is liable only to the extent of 
the assets inherited by him from the deceased. The heir is not 
personally liable to pay tbe debts of the deceased, not even if 
he be a son or grandson (e). 

This section deals with the liability of an heir for debts. As regards debts, the pure 
Hindu law drew a distinction between the liability of a sou and grandson on the one 
hand and the liability of other heirs on the other. According to that law— 


(1) an heir other than a son or grandson was liable to pay the debts of the deceased 
to the extent of the assets or proi)erty inboritod by him from the deceased; 
but 

(2) an heir, being a son or grandsonj was liable to pay the debts of bis deceased 
father or grandfather, even if no assets had been inherited by him ; in other 
words, if the father or grandfather died without leaving any property or left 
property not sufficient to pay the debts in full, the son and grandson were 
liable to pay the debts of the deceased out of their own property^ provided the 
debts were not of an immoral or illegal character [sec. 298]. This rule, however, 
w'as not considered to be equitable, and it was not followed in any part of 
British India except in the Bombay Presidency, In that Presidency also 
the law was altered by legislation in. 1866 so as to limit the liability of the 
son and grandson to assets inherited by them from the deceased ancestor (/) 
[see^ the Bombay Hindu Heirs’ Relief Act, 1866]. The result is that the 
liability of sons and grandsons as heirs is now no more than the liability of any 
other heir, 

A simple contract debt is not a charge upon the property of the deceased. A Hindu 
eir, t ere ore, may alienate the property inherited by him from the deceased even 

©ore payment of debts duo by the deceased. Butin that case the heir is personally 

liable to the creditor of the deceased {g). 

( 6 ) 


7-, (1884) 8 Bom, £20 - Gir- 

d^Tlal V. JSai Shiv (1884) 8 Bom. 30« 

Crrfaramv.7iMw(187i>)llBom H.C 78^ 

Sakaram v. Co-inrf (1873) 10 Bom. H c’ 
053 ’ ''' (1889) 13 Bom 


V. Tukaramil'ym 53 Bom. 463, 119 
I.C. 179, (’29) A.B. 233. 

Vnnopooma v, Ganga (1800) 2 'W.B, 290 : 
Jamiyairam v. I^arbhudas (1872) 9 Bom. 

H.c. no. 



DEBTS. 


345- 


No distinction is made in this section between debts properly incurred by the 
deceased and debts incurred for an unlawful or immoral purpose because the debts 
are to be paid not out of the joint family property, but out of the separate property of 
the deceased. 

A Hindu father passes a promissory note to his creditor in respect of a debt barred 
by limitation. Afterwards he dies leaving a son. He also leaves separate property. 
The son is bound to pay the creditor out of the separate estate of the deceased. He 
is not entitled to object on the ground that the note was in respect of a time-barred 
debt (A). See the Indian Contract Act, 1872, sec. 25 (5). 

It will be seen from what has been stated above, that so far as the liability of an 
heir is concerned, there is no distinction now between the Hindu law and other systems 
of law in British India. We next proceed to consider how far the undivided interest of 
a member of a joint Hindu family in the joint family property is liable for the payment 
of his debts. 

II . — Undivided coparcener’s interest when liable for 

his debt. 

289. Undivided coparcenary interest, when liable for 
coparcener's debt. — According to the Mitakshara law as 
applied in all the provinces, the undivided interest of a 
coparcener may be attached in his lifetime in execution of 
a decree against him for his personal debt (i). If it is attached 
in his lifetime, it may be sold after his death whether the order 
for sale was made in his lifetime (j), or after his death (k). 
But it cannot be attached after his death (except where the copar- 
cener is the father), for it then ceases to be bis interest and 
passes to the other coparceners by survivorship (1). It is only 
an attachment effected during the lifetime of the debtor that 
will prevent the accrual of his interest to his coparceners by 
survivorship. 

If the deceased coparcener does not leave separate property, a creditor who has 
not attached the undivided interest of the deceased in his lifetime is absolutely without 
a remedy. 

An attachment before judgment of the undivided interest 
of a coparcener not followed by a decree in bis lifetime does not 
defeat the right of survivorship of the other coparceners {m). 
It is not settled whether attachment before judgment operates 
to defeat the right of survivorship in cases where such attach- 


(h) Narat/unasami v. Samidas (1S83) 6 Mad. 

293 ; Ram Kishan v. Ckhedi (1922) 44 All, 
628. 08 I.C. 235, (’22) A.A. 402. 

(i) Reen JDyal v. Jugdeep (1877) 3 Cal. 198, 4 

I, A. 247 ; Udaramw liann (1875) 11 Bom. 
H C. 76. 

(;) Snraj Bunsi Koer v. Sheo Proshad (1879) ‘ 

5 Cal. 148, 174, 6 T.A. 88, 109. See 
Sheikh Karoo v. Rameshwar Rao (1921) 

6 Pat. L. J. 451, 458, 62 I.C. 905, (’23) 

A.P. 143 [mortgage decree] . r~ 

{k) BUhal Das v. Nand Kishore (1901).23 AlC 


All. 4, 89 I. C. 291, (*26) A. A. 157. See 
MadiM Pershad v. Mehrbaa Singh (1890) 
17 I.A. 194, 197, 18 Cal. 157, 101; Sk^o 
Jitahup Bikram Sinrrh v. Mahant Thakvr 
Das (1940) 15 Luck. 503, 187 I.C. 90 
(40) A.O. 200. 

(/) See Suraj Bunsi Koer v. Sheo Proshad (1879) 
5 Cal. 148, 6 I.A. 83; (1890), 17 1. A. 
194, 107, 18 Cal. 157,161, swpra. 

(m) Ratnafiapi/a v. Angappayj/a 17 Mad. 144; 
Kalianna Goundun v. Ma’iayappa Goun- 
rfen/1943) Mad. 397, 207 I.C. 579 (’43) 


Ss. 

288,289 



346 


HINDU LAW. 


S. 289 ment is followed by a decree in the lifetime of the defendant. 

The Higli Courts of Bombay {n) and Patna (o) have held that 
it does not. The High Court of Madras {p) has held that 
it does. The ground of the Madras decision is that where a 
decree follows on an attachment before judgment, no reattach- 
ment is necessary ; therefore, the mere passing of the decree 
renders the attachment before judgment as effective as an 
attachment after decree. See the Code of Civil Procedure 
1908, 0. 38, r. 11. 


liluairations. 

(a) -4 and his nephew B are members of a joint Hindu family. A is indebted to 
C in the sum of Rs. 3,000, 0 may obtain a decree against and may enforce it in .4’e 
lifetime by attachment and sale of id’s undivided interest in the joint property. But 
if i4’a interest in the joint property is not attached in .d’s lifetime, it cannot be attached 
aJUr his death. 


(b) A and his brother B are members of a coparcenary. A is indebted to C in 
the sum of Rs. 3,000, C obtains a decree against A in ,4 ’b lifetime. Before any step 
is taken in execution of the decree, .4 dies leaving a widow and his brother R, He also 
leaves separate property worth Rs. 2,000. Here A's separate property will pass to 
his widow as his heir, and C may enforce the decree by attachment and sale of that 
property. But he cannot attach A'a undivided interest in the coparcenary property for 
the balance of his debt, for that interest has passed to B by survivorship. 

If, in the case put above, no suit was in-stituted by C against A in A'a lifetime, C 
could inslitiite a suit against ..4's widow after A’a death as his heir and legal represen- 
tative, and obtain a decree against her, and enforce it by attachment and sale of ^’s 
separate property inherited by her. But he cannot bring a suit against B to recover 
hia debt out of the coparcenary property. Similarly, if .4 dies after suit, but before 
decree, C may continue the suit against A'a widow as hia heir, and obtain a decree against 
her, and enforce it by attachment and sale of ^’s separate property. But he cannot 
proceed against A s undivided interest in the joint property. That interest will pass 
to B who will take it by survivorship free from the burden of the debt. 


(c) .4. and his brother B are members of a joint family. A is indebted to C in 
the sum of Rs. 3,000. G obtains a decree against Af and in execution of the decree gets 
^’s interest in the joint property attached. A then dies leaving R. The interest of 
A in the joint property, having been attached in 4*8 lifetime, may be sold in execution 
after A' 6 death. The point to be noted is that if the share of a coparcener is attached 
%n hia lifetime, it may be sold in execution after hia death. The sale may take place after 
the death of the debtor, but the attachment must take place in the lifetime of the debtor. 


(d) A coparcenary con-sists of a father and son. The son dies indebted to C in the 
sum of Rs. 5,000. The son does not leave any separate property. C cannot proceed 
agaiiLst the son’s undivided interest in the coparcenary property. It wouldl^ee^^dSa?^ 
dillerent if G had obtained a decree against the son, and attached his interest in the 
coparcenary property in his lifetime : Udaram v. Ranu (187f>) 11 Bom. H.C. 76 [A/a(Aer 
lender no religious obligation to pay the delits of hia son]. 


(n) S«'>/-ao V. iyaAatieyi (11)14) as Bom. 105 'Z1 
I.C^. 330, (‘d.H A:®- Xaz^n 


, (o) .b'toififcr Lai v. lia^jhanandau (iy^4) 3 Hat. 

' ' 1 \fn.l T r flifl nt> I fy r n A « HC 



BESTS. 


347 


It wijl be seen from what has been stated above, that a person lending money to 
a Hindu who has no separate proj)eriy of hia own, has no chance of recovering back his 
money, unless he obtains a mortgage or a charge on the undivided interest of the debtor 
in the joint family property [ss. 268, 269], or, where he has not obtained such a mortgage 
or charge, he obtains a decree against the debtor and attaches his undivided interest 
in the joint family property in the lifetime of the debtor. It is, however, different where the 
debtor is a father, grandfather or great-grandfather : see ss. 290-294. 


Sb. 

289.290 


As a general mlo, the execution of a decree consists of two steps, namely, attach- 
ment and sale. Where a creditor obtains a decree against a coparcener, the first step in 
execution, if ho wants to proceed against the undivided interest of his debtor in the joint 
property, is to apply for attachment of the right, title and interest of the debtor in the 
joint property. After the right, title and interest is attached, the next step is the sale 
of such right, title and interest. After the property is sold, the purchaser is entitled to 
call upon the other coparceners to come to a partition with him, and if they refuse, to 
bring a suit against them for partition of the coparcenaiy property [s. 261]. 


111. — Liability of joint family property for father’s debts. 


290. Pious obligation of son, grandson and great-grandson 
to pay ancestor’s debts. — {1) Where the sons (which expres- 
sion throughout includes son's sons and son’s son’s sons) are 
joint with their father, and debts have been, contracted by the 
father in his capacity of manager and head of the family for 
family purposes [s. 240], the sons as 'members of the joint family 
are bound to pay the debts to the extent of their interest in 
the coparcenary property [ss. 240-242]. 

Where the sons are joint with their father, and debts have 
been contracted by the father for his own personal benefit, the 
sons are liable to pay the debts protnded they were not incurred 
for an illegal or immoral purposes. 298]. The liabibty to pay 
the debts contracted by the father, though for his own benefit, 
arises from an obligation of religion a'nd piety which is placed 
upon the sons under the Mitakshara law to discharge the fath- 
er’s debts, where the debts are not tainted with immorality' {q). 
The liability exists irrespective of the fact whether the 
joint family includes persons other than the father and son (r). 


(?) Jlmioaman Persand v. M^sanvmal Babooee 
(1850) 6. M. r. A. 393, 421 ; Girdharec 
Lull V. Kantoo Lai (1874) 1 1. A. 

321, 14 Beng. L. R. 187 ; Suraj Biimi 
Koer V. Sheo Pros/iad (187S) 5 Cal. 148, 
6 I.A. 88 ; MutUiyivi v. Xamindar of 
SiDagri (1883) 6 Mad. 1, 0 I. A. 128; 
Maruthappan v. bliraikulathan (1937) 
Mad. 943, 109 I. C. 292, (’37) A. M. 
434; C/wckalingnm v. ^^lUhukar^t})pan 
(1938) Mad. 1019, (’38) A. M. 849. 

(f) Lalta Prasad v. Ga)(idhar Shiiknl (1033) 
55 All. 283, 190 l.C. 181, (’33) A.A. 


235; Virayya v. Parthasaraihi Appa Rao 
(1934) 57 Mjid. 190, 149 l.C. 188, ('33) 
A.M. 090 ; Chhotey Lai v. Ganpat Rai 
(1935) 57 All. 590, 150 l.C. 411, (’34) A.A. 
590 (P.B.): ovemiUnjj Offn'iul Liquida- 
tor, U.P. OU Mills Co., Ltd. V. Jamna 
Prasad (1933) 55 All. 417, 143 l.C. 762, 
(*33) A.A. 334. This applies to Mithila 
also where the law is the same as the 
law of the Mitakshara except In a few 
matters ; Souretuira Mohan v. Bari 
Prasad (1926) 5 Pat. 135, 15.5, 91 l.C. 
1033, (’23) A.rC. 280. 



348 


HINDU LAW. 


S.290 


(2) Liability not personal— The liability of the son, 
grandson and great-grandson to pay tbe debts of their ancestor 
is not a personal one, that is to say, the father’s creditor is 
not entitled to proceed agamst their person or their separate 
property, jt is limited to their interest in the joint family 
property (s), unless he accepts personal liability in the course 
of judicial proceedings such as Insolvency Proceedings {(). 

BnkaspatVs text ,- — “He who having received a sum lent or the like doe-s not repay 
it to the owner will be bom hereafter in his creditor’s bouse, a slave, a servant, a woman, 
or a quadruped”. [Colebroke, Vol. I, p. 334]. The liabiUty to pay the father’s debts 
arises from the religious obligation to rescue him from tbe penalties arising from the 
non-pajTnent of his debts. 

Illustration. 

A coparcenar}' consists of a father and son. The father borrows Rs. 5,000 from 
C for an immoral purpose. C may obtain a decree against the father and enforce it by 
attachment and sale of his interest in the joint family property in the fath-er^s lifetime. 
But if the father’s interest is not attached in his lifetime, it cannot be attached after 
hia death, and it will then pass to the son by survivorsMp. See s. 289 and s. 29-i (6). 

(3) Duration of liability , — The pious obligation of the sons 
to pay the father’s debts lasts only so long as the liability of 
the father subsists. If the debts are saved from limitation by 
the father’s acknowledgment, the son is boimd to pay {u) 
even though the acknowledgment by tbe father is after a 
partition between tbe father and the son (r). The sons' 
liability is neither joint nor joint and several as those terms 
are ordinarily miderstood in English law [to). 

Thus if the father is adjudicated an insolvent for debts contracted by him, and 
he after^'ards obtains hjs discharge, the effect of the discharge is to release the father 
from those debts. No suit can therefore bo maintained against the father for those 
debts, and since no suit can be maintained against the father, none can be maintained 
against the sons in respect of those debts (z). 

(4) Liability exists even in father’s lifetime .- — The liability 
of tbe sons to pay the father's debts exists whether the father 
be alive or dead (y). This liability exists even where by 


(«) P«da V. (11)18) 41 Mad, 

136, 142, 43 I.C, 227, (’19) A.il. 1175; 
SukJideo V. ?iladkut\uUm (1931) 10 Pat. 
305, 132 I.C. 871, (’31) A.P. 177 : Bixse^sor 
Bam V, Bamakant Duhetf (1934) 13 Pat 7, 
151 I.C. 379, (’34) A.P. 187 : De*\ Das v. 
Jada ifa»7»(1934) 15 Lab. 50, 147 I.C 225 ‘ 

(’33) A.L. 857. 

(i) Coimbatore Venkataraman Vxlas Co., lAd. 

V. Official Bereuer. Caimbatore (1940) 1 
Mad. 101, 180 I.C. 125, (’40) A.M 30. 

(u) Lalla Prasad v. Gayndhar Shukul (1933) 

55 All. 283, 149 I.C. 181, (’33) A.A. 235. 1 

(«) 3Juni«ujami v. iTuMi (1933) 5fi 3Iad 833, 

145 I.C. 404, (’33) A.M. 708; Thadi I 
Murali Mohan Beddi v. Medapali Ganga- ' 


raja (1942) Mad 95, 197 I.C, 199 (’41) 
A.M. 772 (F.B.). 

(«■) Narayanan v. IVerappa (3917) 40 Mad 5S1, 
35 I. C. 918, (’17) A.M. 989. 

(X) (1917) 40 Mad. 531, 35 I.C. 918, (’17) A.M. 
089. 

(y) Brij .Yarain Bai v. Mangla Prasad (1924) 
.51 l.A. 120, 4C All 95, 77 I.C. 689. (’24) 
A. PC. 50; Abdul Karim Ram Kishorc 
(1925) 47 All. 421, 80 I C. 837, (’25) A.A 
327; Badri Prasad v. MaiUtn Dal (1893) 
15 All. 75. 79 (F.B.l ; Goiind v. Sakharam 
(1904) 28 Bom. 383, 3S9 ; Ramasarm v. 
TJlaganatha (1809) 22 Mad. 49, 63 ; 
Debendra v. Fgzat^ail Bank (1924) 3 Pat. 
03, 75 I.C. 53, (’24) A.P. 04. 



DEBTS. 


349 


C 


a custom in the Puri jab, the son cannot enforce partition S.'Kt 
during the father’s lifetime ( 2 ). 

There arose recently a conflict of opinion whether there was any pious obligation on 
the part of the sons to pay the father’s debts in the lifetime of the father, or whether the 
obligation arose for the first time after the father’s death. The conflict arose out of 
some obserrations of the Judicial Committee in Saku Ram'a case [a). Following those 
observations, the Allahabad High Court held that the obligation did not arise until 
after the father’s death (6). On the other hand, the Madras (c) and Bombay (d) High 
Courts held that the liability arose even in the father’s lifetime, and that the observations 
in Sahu Ram's case were mere obiter dicta and they did not aflect the law as laid down 
by the Judicial Committee itself in a long line of decisions. In a later case, that of Brij 
Narain Bat v. Mangla Prasad (c), their Lordships of the Privy Council held that the 
observations in Sahu Barn's case referred to above were not necessary for the deoision of 
the case, and that the sons were liable for the father’s debts whether the father was 
alive or dead when tho liability attached. 

It may here be observed that under tho old Hindu law the liability of the son to 
pay the father’s debt did not arise until after the father’s death. Under Hindu law as 
interpreted by the British Courts the liability exists even in the lifetime of the father. 

To this extent the British Courts have extended tho liability of the son. In another 
respwt, however, that liability has been curtailed, for while under the old Hindu law, 
the liability extended to the personal property of the son, it is now limited to his interest 
in the joint family property. 

(5) Debt contracted by father after 'partition . — The sou is 
not liable for a debt contracted by the father after partition. 


(6) Liability of son after partition for debt contracted 
by father before partition— It is now held by all the courts 
in India that the son is liable after partition for a debt con- 
tracted by tbe father before partition (/). But if the suit is 
filed after partition against the father only the decree cannot 
be executed against the son [g). 


(z) Nthal Chand. Gopal Das v. Mohan Lai (1932) 
13 Lafi. 455, 135 I.C, 197, (’32) A.L, 211. 
(a) (1917) 44 I.A. 126, 39 AU. 439, 443 

444, 39 I. C. 280, (’17) A. PC. 81. 

(fc) Kishen Singh v. Chhajjii Singh (1923) 45 .\U 
90, 79 I. C. 238, (’23) A.A. 206. 

(c) Peda Venkanna v, Sreenirasa (1918) 41 Mad. 

130, 1-U, 148, 43 I.C. 225, (*19) A.M. 1175 
[personal decree]; Aimngham v. Muthu 
(1819) 42 Mad, 711, 52 I, C. 625, (’18) A 
M. 75 [P.BO fmortgape for antecedent 
debt]; Eandastni v. Kuppu (1920) 43 
Mad. 421, 55 I.C. 320, (’20) A.M. 479 
[mortgage not for antecedent debt] , 
Sama liao v, Vannajee (1923) 40 Mad. 64, 
71 I. C. 153, (’23) A M. 30 [mortgage not 
duly attested and therefore a nullity]. 

(d) JIanmant v. Ganesh (1919) 43 Boin. 012, 

027-030, 51 I.C. 012, (’18) A B. 13. 

(e) (1924) 51 I.A. 129. 40 All. 95, 77 I.C. 089, 

(’24) A.PC. 50. 

(/) (Calcutta) Kiilad-a Prasad v. Uanpadii (1913) 
40 Cal. 407, 17 I. C. 257 [a cn.se of par- 
tition constituted by conversion of son]. 
(Madras) llarrhchandra v, Kondayya (1901) 
24 Mad. 555 ; Jagannatha liowv, Viswe)>a}i 
(1924) 47 Mad. 021, 80 1. C. 228, (*24) 
A.M. 682 ; Subraniania v. Sabapathv 
(1028) 51 Mad. 361, 110 I C. 141, (’28) 
A. M. 057 [F. B,] 


(Bomb»ay) Atinabhal v. Shivappa (1928) 52 
Bom. 370, 110 I. C. 269, (’28) A. B. 232. 

(AlJaiiabad) Banl-ey Lai v. Durya Prasad 
(1931) 53 All. 868 [F.B.], 135 I.C. 139, 
<’3l) A, A. 512 (settling the conflict 
between the earlier decisions), 

(Patna) Alul Krishna Iloy v. Lala Xandanji 
(1935) 14 Pat. 732 [F.B ], 157 I.C. 53. 
(’35) A. P. 275 (overruling nu earlier 
decision). 

(Lahore) Jatcahir Singli v. /'arduwwn Sin^A 
(1933) 14 Lah. 399, 141 I.C. 424, (’33) 
A.L. 116, 

(Tsttgpur) Firm Goimdram Dtoarkadas v. 
Nathvlal (1938) Nag. 10, 170 I.C. 724, 
(•37) A,W. 45. 

(Oudh) Jaqeshirar v. J/anni l\aw» (1927) 
2 Luck. 561, 101 I.C. 907, (’27) A. 0. 180. 

(g) Firm Govindram Dvmrkadas v. Xathnlal 
(1988) Nag. 10, 170 I.C. 724, (’37) A.X. 45 ; 
Alttl Krishna Roy v. Lala Xandanji (193.'i) 
14 Pat. 732 [F.B ], 157 T.C. 53, (’35) A.P. 
275 (suit for money filed in Jan, 1931. 
Partition decreed in Mar. 1931 dates 
back to Nov. 1930 when the suit was 
(filed); Jfuppnn fVjWiufr v J/asu'/owjnfou 
(1937) Mad. 1004, 109 I.C. 400 (’37) 
A.M. 424; Fri-s/niHsemmi v. iiainasitvnti 
(1899) 22 Mad. 019. 



350 


HINDU LAW. 


Ss. 

i90A-292 


290A. Grandfather’s share — Where a decree has been 
obtained against a Hindu who was a member of a joint family 
consisting of himself his father and his son and the judgment 
debtor and his father died soonafter, it washeldthatthe liability 
of the son to pay the father’s decree-debt covers even the 
.share of the judgment debtor’s father (h). 


291. Extent of liability of grandson and great-grandson.— 
The son is bomid to pay the father's debt with interest. So 
also is the grandson (i). It was at one time supposed that the 
pious obligation to pay ancestral debts did not extend beyond 
the grandson. Hut it has now been held by the highest tri- 
bunal that the great-grandson is bound to pay the great-grand- 
father’s debts, and that his liability is co-e.xtensive with that of 
the son and grandson (j). 

Brikaspad saya : The eons must pay the debts of their father, when proved, as if 
they were their own, that is with interest; the son’s son must pay the debt of his grand- 
father but without interest ; and the son’s son’s son shall not be compelled to discharge 
it unless he has assets” ; [Colebroke, Vol. I, p. 265]. The distinction which has been 
made by the Hindu lawyers has not been recognised by the British Courts. 

In Ck^t Ram. v. Ram Singh {k), the Judicial Committee observed, upholding the 
view' expressed by the High Court of Allahabad (C, that there was no pious obligation 
on the grandson to pay the debts of hia grandfather while his own father w'as living. 
But this view must now be taken to have been superseded by the decision of the same 
tribunal in JSIasil Ullah v, Jjamodar Prasad (m). In that case tho joint family consisted 
of A and his son B. A sold an item of the joint family property to discharge a debt that 
was contracted by his grandfather. It was held that B'& interest in the property was 
bound by the sale, as the sale was made to liquidate his (B’s) great-grandfather’s debt 
which B was under a pious obligation to pay. 

It will be seen from ss. 289-291 that no coparcener except a son, grandson or great- 
grandson is liable for the private debts of any other coparcener. Thus a nephew is not 
iable for the debts of his uncle ; therefore, if an uncle and nephew are members of a joint 
lam ily, the nephew’s interest in the joint property cannot be attached and sold in execu- 
tion of a decree against the uncle (n). 


292. Creditor's suits . — (!) Suit against father . — In a 
case where the son is under a pious obligation to pay the 
father s debt, the creditor may sue the father alone and obtain 
a decree against him, and he may execute the decree by 


(M 

(i) 


IJ) 


Ik) 


.^hrawan v, Janjvhfa (1045) 410. 

Lachmm l)aa v Khunnu JaiI (189T) 19 Al 
26 [F .li.] , L^idu V, nobartWan Dan (1921 
4 Fat. 47S, 4S1-482, SO 1 C 721 <•»■ 
A. P, 4-0. ’ ' 

Manxt Ullnh \ , Damodar Pratad (19261 5 
I.A. 204. 4S All. 518, 98 I, C. 1031, (■2( 
A. PC. 105 , .SVtfo Pam v. Durya (192( 
3 Lock. 700, 112 I, C. Z88, (■28) A C 

(1922) 49 I.A, 228, 230, 44 All. 368, 375-37( 


67 I. C. am, ('22) A. A. 247. 

(/) Ram Swgh v. CJiri Ram (1919) 41 All. 5’i9, 
51 I C. 119, (’19) A, A. 415. 

(m) (1926) 53 I.A. 204, 48 All. 518. 98 I.C 1031, 
(■26) A. PC. 105. 

(ii) Jiam Ralan v. Lachman Das (1903) 30 All. 
460 , Mathura v, Rajkumar (1921) 6 Pat. 
L. J. 525. 62 I. C. 132, ('21) A. P. 447 
[F.B ] ; Ilari Prasad v, Sourendra (1922) 
1 Pat. 606, 525-526, 66 I. C. 945, ('22) 
A. P. 450. 



DEBTS. 


361 


attachment and sale of the entire interest of the father as well 
as the son in the joint family property, and the sale will bind 
the son though he was not made a party to the suit, unless the 
debt contracted by the father was for an immoral purpose. 
Even if the sons were originally impleaded in the suit and 
the suit was afterwards withdrawn against them, the decree 
against the father, can be executed against the son’s interests 
in the joint family property (o). 

If there is a partition after the decree, according to one 
view, the decree may be executed against the joint family 
'property including the son’s interest therein {p). According 
to another view, the creditor should bring another suit agamst 
the sons, obtain a decree against them which would be limited 
to the’shares allotted to them on partition and then attach and 
sell the shares, imless the partition was not bona fide and was 
made -with intent to defraud the general body of creditors, 
in which case the decree may be executed against the joint 
family property {q). 

The first view set forth above proceeds on the ground that the sons are represented 
by the father in the case of a decree obtained before partition. The reasons for the second 
view liave thus been stated by the High Court of Madras : “ At tlie date of e.'cecution 
the property now in question had ceased to be joint family property and the cases referred 
on the other side — 11 Bom. .37, 4 I. A. 47, 6 I.A. 88, 13 Cal. 21 P.C. 28 Bom. 383 — were all 
cases in which the property remained joint and so subject to alienation by the father in 
satisfaction of his debt ” {q). 

If there is a partition durmg the pendency of the suit 
agamst the father, either the son can be made a party and a 
decree would follow as in sub-sec. {2) below or the suit will 
proceed without the son and the decree will follow as above (r). 

Explanation . — A partition is not bona fide and may be 
described as one made with intent to defraud creditors if it does 
not provide for the payment of the father’s debts. It may 
not be proper to say that the partition is such merely because 
it was entered into either pending the creditor’s suit or after 


(o) Krishuan v. Sunn (1940) Mad. 815, ('40) 

A.M. 544. 

(p) Kiahan Sarup v. Brijraj (1929) 51 All. 932, 

9.55-50, 121 I. C. 257, ('29) A. A. 720; 
Jageshwar v. Manni Bam fl927) 2 Luck. 
561, 101 I.C. 007, ('27) A.O. 180 ; Nanda 
Kiahore v. Madan Lai ('30) A. L. 64 
(‘ decree before partition.’) 

C^?) Kamtshwaramma v. Venkata Subba Boxo 
(1915) 38 Mad. 1120, 24 I, C. 474, (’14) 
A.M. 328 [decree obtained before parti- 
tion!. 


(r) See ilagunaudaa Bershad v, Moti Bam 6 
Luck. 497, 119 I.C. 449, (’20) A.O. 406. 
where the decree was in Dec. 1926, the 
partition was iu Aug. 1926 and the suit 
was probably prior to August. The 
date of the suit does not appear in the 
report. See also Jauahar Smgh v. Pardu- 
man Bingh (1933) 14 Lah. 399, 141 I. C 
424, (*33) A.L. 116, where the partition 
was in Feb. 1927 but the date of the 
money decree against the father does not 
appear. 


S.292 



352 


HINDU DAW. 


S.292 


the decree in that suit, and with the object of avoiding attach- 
ment of the joint family property in execution of the decree 
in the creditors’ suit (s). 

Where a partition between a father and son was not a 
mere colourable transaction and was in accordance with the 
proper shares in the property it is not liable to be impeached 
under section 53 Transfer of Prdperty Act, although it was entered 
into with a view to prevent attachment of the son’s share in 
execution of decrees obtained against the father after the 
partition. Only the father’s share can be proceeded against (i). 

(2) Suit against father and son . — Under similar conditions 
the creditor may sue both father and son, and obtain a decree 
against them for the debt due to him {u). It is open to the 
son in such a suit to show that the debt was incurred by the 
father {v) for an immoral purpose and to resist a decree against 
his share on that groimd. It is not necessary for the son to 
show that the immoral purpose was known to the lender (w). 
But a distinct connection must be established between the debt 
and the father’s immorality (x). If he omits to do so, he will 
be precluded iu execution proceedings from contending 
the debt was contracted for an immoral purpose (y). 

The Bon may bo joined as a party to a suit on a promissory note executed by the 
father alone (s). See s. 240 (4). 

If there is a partition between the father and the son after the debt has been 
incurred but before any suit ia filed the creditor can reach the share allotted to the son 
on partition only by a suit to which the son is a party (ride s. 290 (6) and cases cited 
therein). Such a suit would in the ordinary course bo one both against the father .-^nd 
the son. The decree against the father would be the usual decree but against the son 
it would be limited to the share allotted to him on partition. 

Even where the debt is a secured debt, the creditor may sue both father and eon. 
If the mortgage is binding on the son also, being executed for an antecedent debt [s. 256 
(2)], or other legal necessity (e. 242) a mortgage decree follows. But if the mortgage 
was not effected for an antecedent debt or other legal necessity there will be a mortgage 
decree in IVIadras and Bombay but not in other provinces against the father but a money 


(5) Balusami Ayyar, In re (1928) 51 Mad. 417, 
425, 112 I.C. 541, (’28) A.M. 735 IKB.J ; 
Subramania v. Sabavaihy (1928) 51 Mad. 
361, 368, 110 I. C. 141, ('28) A. M 057 ; 
Qaya Prasad v. Murlidhar (1928) 50 
All. 137, 104 I. C. 408, ('27) A. A. 714 ; 
Kishan Sarup v. Brijraj (1929) 51 All, 
932, 936-37, 121 I. C. 257, (’29) A.A. 726. 
(() Sekwebo v. Subbiah alias Sha 7 imugfiam 
Chettiar (1945) Mad 138. 

(u) Ramasami v. Ulaganalha (1889) 22 Mad. 49 
fF.B.J ; iVarayanan v. Veerappa (1917) 
40 Mad. 581, 582, 35 I.C. 918, ('17) A.M. 
089 ; Debendra v. Fyzabad Bank (1924) 


3 Pat. 63, 75 I.C. 53, (’24) A. P. 94. 

(v) Bat Narain v. Behari Lai (1925) 52 I. A. 22, 
6 Lah. 1, 84 I. C. 883 (’25) A.PC. 18. 

(«») Lak^hmanaswami v. Baghava^ Char)uln 
(1943) Mad. 717, 210 I.C. 98, (’43) 

A.M. 802. 

(x) Bnjrmlujin v. Mahabeer (1936) 03 Cal. 194 

(y) Krishnanand v. Raja Ram (1922) 44 All. 

303, 00 I.C. 150, (’22) A.A. 116. 

(z) Ramasamnyyan v. Viraaami (1808) 21 Mud. 

222, 224 ; i\ amyan V Veerappa {I9i7) 40 
Mad 581, r82, 35 1 C. 918, (’17) A M 
980, supra; Hamphul Singh v. L'ej liaratn 
(1882) 8 Cal. 517. 



DEBTS. 


363 


decree against the -son (s. 259 and s. 260) conditional on the debt not being realised 
by the sale of the father’s share (a). See sec. 296 (i). If there is a partition between 
the father and the son after the mortgage, Oio son is still liable to pay the debt unless 
it is incurred for illegal and immoral purposes. In such a case the son ought to be a 
party to the suit. As the father does not represent him, the equity of redemption in hie 
share of the property would not be lost unless he is impleaded and is given an opportunity 
to redeem. If he is not impleaded in the suit against the father, there ought to be anothes 
suit against him or other proceeding giving him an opportunity to redeem before he is 
deprived of his share, There can be no objection to the maintainability of such a suit, 
If he obstructs delivery of the property to the purchaser, he may bo allowed an opportunity 
to redeem in those proceedings. In such cases, he must redeem the whole of the debt anc 
not merely his own share {b). The son himself may file a suit for a declaration that the 
mortgage is not binding on him[mrfe s. 296 (1) ].J 

(5) Son alone cannot he sued during fathers lifetime . — 
Where a debt has been contracted by the father for bis 
personal benefit, be is primarily liable to discharge it. Sucl 
being the case, the son alone cannot be sued duxiug tb( 
father’s lifetime (c). 

{4) Suit against the son after father's death there beirig m 
suit against the father. — In such a case, the creditor may fils 
a suit and obtain a decree against the son, and attapb tb( 
m^e interest of the father and son in the coparcenary property 

have it sold in execution of the decree. The son bein^ 
under a pious obligation to pay the father’s debts, he cannol 
claim the benefit of survivorship. It is assumed that thedebi 
contracted by the father was not for an unlawful or immora 
purpose. Such a suit may be filed and a decree obtainec 
against the son, even if, at the time of the suit, the grandfathei 
is bving. The decree may be executed against the share o. 
the father and the son in the ancestral property (d). 

(5) In the case of a money claim there cannot be a seconc 
suit against the son after the father’s death where a decre( 
had been obtained against the father durmg his lifetime 
The decree can only be executed against the son, whether th( 
son is regarded as being represented by the father or as £ 
representative of the father within the meaning of sec. 53 of tht 
Code of Civil Procedure (e), see s. 294 (C). The Madras (/ 


(а) Kamlasami v. Kuppu (1920) 43 Mad. 421, 

55 I. C. 320, (’20) A. M. 479 ; Sami V. 
Poonnammal (1807) 21 Mad. 28. 

(б) Trimbak v. Narayan Damodar (1884) 8 

Bora, 481 ; Hem Raj v. Baslieshcr Das 
(1933) 14 Lah. 22, 147 I.C. 693, (’33) A.L. 
253. 

(o) Periammiy. Scetharama (1904) 27 Mad. 243, 
247 [F.B.l. 


(d) Devx Das v, Jada Ram (1934) 15 Lah. 60 

147 I.C. 225, (’33) A. L. 857, disbentin] 
from Bimini Parsad v. Raj Ballabh (1926 
48 AU, 245, 91 I. C. 785, (’26) A. A 
220 . 

(e) Venkatanarayana v. SoTmraju (1937) Mad 

880 (F.B.), 171 I.C. 101, (’37) A.M. 010. 

(f) Periasami v. Seet/iarama (1904) 27 Mad. 241 

[F. B.]. 


S. 292 


19 . 



354 


HlJr^SU LAW. 


Ss. and Allahabad decisions under the Code of Civil Procedure, 
292, 293 1 882, allowdng a second suit against the son on the judgment 

debt are of no practical importance. 


292A. Where two brothers contracted a debt in respect 
of a joint family business the creditor is entitled to a decree 
against them after their separation in status by a partition 
suit {g). _ , 


293. Limitation. — {!) Against father. — Where the suit is 
brought against the father alone to recover a debt contracted 
by him for his own personal benefit, the period of limitation 
for the suit is, in the case of an unsecured debt, 3 years from 
the date when the debt becomes due and payable [Limitation 
Act, Sch. I, arts. 57, 58, 66, 67]. 

(2) Against son . — It has been held by the High Court 
of Madras that whether the suit is brought both against 
father and son, or it is brought agamst the son after the 
father’s death, there is only one cause of action which arises 
equally against father and son at the time when the debt 
is due and payable, and limitation runs equally against them 
from that date (h). It has accordingly been held by that 
Court that a suit against the son after the father’s death is 
governed by the same article of the Limitation Act as would 
be applicable if the suit where brought against the father 
himself, the reason given being that the suit against the son 
is as much a suit on a contract (that is, the father’s contract 
of debt) as a suit agamst the father {i). According to this 
view, the period of limitation, m the case of an unsecured 
debt^s 3 ye ars from the date when the debt become^ due 
andpayable I Limitation Act, ijch. 1. articles 57. 58. 6^ 67]. 
On theotlier~h3,nd, itdias^een held by the High Court of 
Allah a.bad that the son’s liability is not governed hvthe sa me 
' article as the father’s liability, but by article 120j the reason 
given bem^ that the son not being a party to the contract, 
could not be sued on contract. ^ His liability arises from 
. the pious obIigaH5rrtd~pa)rtbe father’s deb t, and the only 
article appJjcable to the case is article 1 9!h. Thatr article 
applies to suits tor which no period nf ]irnT En?h'nri is provided 
sp ecifically by the Act, an d the period j nescribed by ^ hat 


\g) Jiam Ilakfian v. Bajalal (1944) Luck. 605. 

(fi) Malle^am v. Jugala (1900) 23 3ttad. 292, 


PeruiBumi v. Seetharania (1904) 27 mad- 
243 [F.B.]. 



DEBTS, 


356 


article is 6 years from the date when “ th e right to sue accrues .” 
TEoughliliere is a difference of opinion between the two High 
Courts as to the period of limitation for a suit against the sons, 
t hey are both agreed that the starting mint of limitation in 
respect of the liability both of the father and the son is the 
same, namely, the date on which the debt becomes due and 
payable {j). A hull Bench of the Calcutta High Court has held 
hruircase in which a suit was brought against the Soils' "after 
: .the. father’s death, that the case was governed by article 120 
of the Limitation Act, but the question whether “ the right 
to sue ” accrued on the date on which the debt incurred by 
the father becomes due and payable, or the date when the 
creditor after exhausting all his remedies against the father 
finds that the deht or a portion of it is still unsatisfied, or the 
date of the death of the father, was left open {k). V 


I 

(3) Where deht is secured by a charge . — Where a debt 
contracted by the father is secured by a simple mortgage of 
joint family property or by a charge on such property created 
by him alone, and a suit is brought to enforce the mcnigage or 
charge, then whether the suit is against the father alone, or both 
against father and son, or against the son after the father’s 
death, the article of the Lunitation Act governmg the father’s 
liability is article 132 which prescribes a period of 12 years 
from the date when the money sued for becomes payable. 
But the son, not being a party to the mortgage, is not bound 
by the mortgage, and art. 132 does not apply to his case. He is 
liable, however, for the mortgaged-debt qua debt, and his 
liability is governed, according to the. MadraTs decision referred 
to in sub-sec. (2), by one of the articles which prescribe a period 
of 3 years, and, accordin g to r!a.1p.ntta. 

d ecisions referred m the °^m" sub-section, by article 1 20 
which prescribes a period of 6 years. According to the 
Madras decision, the mnrtg agee'ssnit af piunt the non - w ^ mld 
be barred if brought m oreThan 3 years after th e v i crrnfrl - r ) f the 
cause of action ; accordmg ^o the Allahabad and Calcutta 
decisions, it would be barred if brought more than 6 years 
after that date (1). ' — 


(j) Narsingh v. Lalji (1901) All. 23 206, Sec 
Makaraj Singh v. Balwant Singh (1906) 
28 All. 608, 510. 

{k) Brignandan v. Bidija Prasad (1915) 42 Cal. 
1068, 29 I.C. 629, (’10) A.C. 279. 


(1) Brignandan v. Bidya Prasad (1915) 42 Cul. 
1008, 29 I.C. 029, (’36) A.C. 279; Chan- 
dradeo Singh v. Mata Prasad (1909) 31 
All. 176, 179, lines 4-10, 11.0.479 [F.B.l 


S,.293 


300 


HIJSUU JjAW. 


S.294 


294. Sale of coparcenary property in execution of decree 
against father alone.- — The l&w on the subject-matter of this 
and the next section was first expounded by their Lordships 
of the Privy Coimcil in Muddan Thakoo r v. IjnMnn TmI,1 (to). 
The judgment in that case was summarized by their Lordships 
in S uraj Bunsi Koer v. Sheo Proshad {n ) in the following 
terms : — ' 


(a) “ That where joint ancestral property has passed out 

of a joint family, either (1) under a conveyance 
executed by a father in consideration of an antecedent 
debt, or in order to raise money to pay off an ante- 
cedent debt [s. 295] or (2) under a sale in execution 
of a decree for the father’s debt [s. 2940] his sons, 
by reason of their duty to pay their father’s debts, 
cannot recover that property, unless they show 
that the debts were contracted for immoral pnrposes, 
and that the purchaser had notice that the debts were 
so contracted ” ; and 


(b) “ that the purchasers at an execution sale, being 

strangers to the suit, if they have not notice that 
the debts were so contracted, are not bound to 
make enquiry beyond what appears on the face of 
the proceedio-gs.” 


The following passage from the judgment of their Lord- 
ships of the Privy Council in Mst. Nannrni Bahuasin v. Modun 
Mohun (o) has now become classical: — • 


“ Destructive as it may be of the principle of indepen- 
dent coparcenary rights in the sons, the decisions have 
for some time estabhshed the principle that the sons 
cannot set up their rights against theh father’s 
alienation for an antecedent debt, or against his 
creditors’ remedies for their debts, if not tainted with 
immorality. On this important question of the 
liability of the joint estate their Lordships tliink that 
there is now no conflict-< if authority.” — — 

When the father became a Christian and was afterwards 
reconverted to Hinduism a sale in execution of a money 
decree against him does not pass the minor son’s share in the 


(m) (1874) 14 Betg. L. E. 185, 1 I. A. 333. 
(71) 6 I. A. 88, 108, 5 Cal. 148, 171. 


I 


(o) (1886) 13 Cal. 21, 35, 13 I.A. 1, 17, 18, 



DEBTS. 


357 


family property, as the joint family was broken up when the / S«. 
father became a convert and there can be no reunion with the 294^| 
minor son (p). ^ 

294 A. Sons’ remedies before sale. — (i) A debt con- 
tracted by the father for his oion personal benefit may be 
secured by a mortgage of joint family property or it may be 
unsecured. In either case the creditor may obtain a money 
decree against the father alone, and may attach and bring to 
sale the entire joint family property including the sons’ interest 
therein in execution of the decree. The sons being under a 
pious obligation to pay the father’s debt, cannot object to 
the attachment of their interest in the property on the ground 
that the debt was not for the benefit of the family. Nor 
can they object on the ground that they were not parties 
to the suit in which the decree was passed. ■ Prima facie a 
decree obtained against A cannot be executed by attachment 
and sale of 5's .property. But the position of sons in a joint 
Hindu family is, by reason of their pious duty to pay their 
father’s debt, very difterent from that of an ordinary third 
party. The sons being under a pious obligation to pay the 
father’s debt, the entire joint family property is liable to be 
attached and sold in execution of the decree against the father, 
unless they show that the debt for which the decree was passed 
was incurred by the father for an immoral or illegal purpose 
or successfully challenge the existence of the debt on which 
the decree is based (pi). There are two courses open to the 
sons in such a case. They may come in under 0. 21, r. 58, 
of the Code of Civil Procedure, 1908, and object to the attach- 
ment and sale on either of the grounds mentioned above. 

The party against whom the order is made will then, under 
O. 21, r. 63, be entitled to bring a suit in which the whole 
question as to whether there was a debt or not, or 
it was immoral or not, vdll be determined. If no such suit 
is filed within one year from the date of the order, the order 
will be conclusive (q) \ [see Limitation Act, 1918, Sch. I, art. 11]. 

The sons, however, are not bound to proceed under 0. 21, 
r. 58. They may bring a suit against the decree-holder for 


(p) Vella V enkatasnibbayya v. Vella Venkat- 
Tamayya (1944) Mad. 33. 

(pi) Lakahmada v. Bamudu ds Ora. (1940) Mad. 
123, ISr I.Cl. 810, (’39) A.M. 687. 

(g) Indar Pat^. The Imperial Bank (191.^) 37 
All. 214, 28 I.C. 593. (’IsrA.A. 126; 
Mohan Bal v. Bala Prasad (1922) 44 


All. 649. 69 I.C. 754, (’22) A.A. 310; 
Hamn<ani Kashinaih v. Ganesh Annaji 
(1919) 43 Bom. 612, 51 I.C. 612, (’18) 
A.B, 13 ; Madhusudaii v. Iswan Dayi 
(1921) 48 Cal. 341, 61 I.C. 25, (*21) A.C. 
152 ; Bam BafCun v. Basant Rai (1921) 
2 Lah. 263, 64 I.C. 121, ('21) A.L. 205. 



358 


HINDU LAW. 


a declaration that they are not bound by the decree and for 
an injunction restraining the decree-holder from selling the 
entire property, but theh share will not be released from 
attachment, unless they show that the debt for lohich the decree was 
obtained icas tainted with immorality (r). And in such a suit 
ad valorem court fees must be paid (s). It has been held in 
Bombay that the decree-holder himself may apply under 
0. 21, r. 66 (2) (e) of the Civil Procedure Code to include the 
sons’ interest in the proclamation of sale, and that the Court 
may on such an application deal with the sons’ objection 
after giving notice to them {t). 


(2) In the case of a mortgage by the father of joint family 
property, the creditor may obtain a mortgage decree against 
the father alone. Where the property is put up for sale in 
execution of a mortgage decree, no attachment takes place as 
in the case of a money decree. The sale is held in such cases 
imder the final decree for sale passed in the mortgage suit. But 
the sale is always notified by proclamation under 0. 21, r. 66, 
and the sons may at the time of sale give public notice to all 
intending purchasers that there was in reality no debt owmg 
from the father or that the debt for which the decree was passed 
was contracted by the father for an immoral or illegal purpose. 
Where such notice is given, and the property is purchased after 
such notice, though it may be by a stranger to the suit, the 
sale will be set aside, if the sons show, in a suit subsequently 
brought by them, that the debt was contracted for an immoral 
pui'pose ; for the purchaser, though he may be a stranger to 
the suit, will then be taken to have had notice, actual or 
constructive, of the sons’ objections, and therefore to have 
purchased with notice of the sons’ claim and subject to the 
result of the sons’ suit {u ) ; see s. 294B {!), para. 2. But the 
sons are not bormd to wait until the property is sold. They 
may brmg a suit against the mortgagee for a declaration that 
they are not bound by the decree and for an injunction 
restraining the mortgagee from selling the entire property. 


(rj Karan Singh v. Bhup Singh (1005) 27 All, 
16 [F.B.] ; Abdul Kanm v. Ham KUhore 
(1925) 47 All. 421, 80 I.C. 837, (’25) 
A.A. 327 ; Sardari Lai v. Bharat Natimal 
Bank (1931) 12 Lah. 495, 130 I.C. 836, 
(*31) A.L. 716 ; PlrthLSingh v, Manxhand 
(1935) 16 Lah. 1077, 156 I. C. 539, (’35) 
A. L. 701. 

(8) Vinayakrao v. ilankunwarbai (1943) Nag. 


440, 202 I.C. 043. (’43) A.N. 70. 

(t) liamohandra v. lihagwani (1020) 63 Uom. 

777, 121 I.C. 435, (’20) A.B. 466. 

(«) Suraj hansi Koer v. Sfico Proshad (1878) 
5 CdI. 148, 173, 6 I.A. 88, 106 (debt held 
to be immoral) ; Bhngtnit PersMd y. 
(J-iTja Koer (1888) 15 Cal. 717, 724, 1.5 I.A. 
OD, 104 (debt held not to be Immoral). 



DEBTS. 


359 


Where such a suit is brought, the question arises whether S. 2SfX 
the sons’ suit must fail unless they can establish that the debt 
for which the decree was passed was for an immoral purpose, 
as they have to do in a suit to set aside a money decree [see 
sub-sec. (i)], or whether they are entitled to succeed if the 
mortgage was neither for legal necessity nor for the payment 
of an antecedent debt, without showing that the debt was 
contracted for an immoral purpose. It has been held in several 
cases that as in the case of a simple money decree, so in the 
case of a mortgage decree, the sons are not entitled to go 
behind the decree, except for the purpose of showing that the 
debt was tainted mth immorality (v). The cases referred to 
above were prior in date to the Privy Council case of Brij 
Narain v. Mangla Prasad {w), decided in 1923. In that case 
the Judicial Committee laid down five propositions (see note 1 
to s. 295), of which the following three are material : — 

(1) The managmg member of a joint undivided estate 
cannot alienate or burden the estate qua manager 
except for purposes of necessity [see. s. 242]. 

(2) If he is the father and the other members are the 
sons he may, by incurring debt, so long as it is 
not for an immoral purpose, lay the estate open to 
be taken in execution proceedings upon a decree 
for payment of that debt [see s. 294]. 

(3) If he purports to burden the estate by mortgage, 
then unless that mortgage is to discharge an 
antecedent debt, it would not bind the estate [see 
s. 295]. 

In Oudh and Prmjab (x), it has been held that the word 
“ debt ” in the second proposition refers not only to a simple 
money debt but also to a mortgage debt, and that the sons’ 
suit must fail unless they establish that the debt was for an 
immoral purpose. This view was followed in an Allahabad 
case, though with some hesitation {y). However, a Full 


(v) B&ni Madho v. liasdeo Palak (1890) 12 All. 
01) ■, Bhaivani Baksh v. TXam Dai (1891) 
13 All. 210 ; Pem Singh v. Partab Singh 
(1892) 14 A'll. 179 [P.B.]. See also 
Chandradeo v. Mata Prasad (1909) 31 All. 
170, 1 I.C. 479 ; Raja Raghunandan v. 
JCumar (1931) 10 Pat. 124, 126 I.C. 377, 
('30) A.P. 521. 

(m>) (1924) 51 T.A. 129, 46 All. 95, 77 I.C. 689, 
(•24) A.PC. 50. 


(z) Gouri Shankar v. Ja/ig Bahadur (3924) 27 
Oudh cases, 124, 79 I.C. 1008, (’24) A.O. 
394 ; Nand Ball v. Umrai (1926) 1 Luck. 
360, 93 I.C. 655, (’26) A.O. 321 ; Jogindra 
Singh v. The Punjab ct* Sindh Bank Ltd., 
Awritsor (1040) 21 Lab. 96, 180 I.C, 357, 
('39) A.L. 585. 

(y) Lai Singh v. Jagraj Singh (1928) 50 All. 
540, 107 I.C. 693, (’28) A.A. 86. 



360 


HINDU LAW. 


I Ss. Bench of the Allahabad High Court (z) disapproved of that 
I294A, 294B view, and held that the word “debt” in the second pro- 
position contemplated a simple money debt, and not a mortgage 
debt ; further, that having regard to the first and third pro- 
positions, a mortgage by the father could only be upheld 
if it was made either for a legal necessity or for an antecedent 
debt, and in no other case, and that if mortgagee failed to 
prove that the debt was contracted for either of those two 
purposes, the sons were entitled to have the mortgage decree 
set aside ivitliout showuig that the debt was for immoral 
purposes. 

In the Allahabad case above referred -to the Full Bench consisted of three Judges. 
The view stated above is the view taken by two of the judges. The third judge was of 
opinion that the word “ debt” in the second proposition included a mortgage debt but 
that the proposition did not apply as the property had not yet been sold. In the view 
of the learned Judge the words “ lay the estate open to be taken in execution proceedings ” 
in proposition two, contemplated cases where the property had already been sold, and 
that the mere passing of a decree cannot bo said to “ lay the estate open to bo taken 
in execution proceedings.” On these grounds the learned Judgo arrived at the same 
conclusion as the other two Judges. The other two Judges, however, refrained from 
expressing any opinion as to the interpretation to bo put upon those words. It is very 
important to note that the ruling in the Full Bench case applies only where (1) the suit 
IS to set aside a mortgage decree, and (2) the suit is brought before sale. 

In a recent case the Bombay High Court agreed with the Full Bench decision of the 
-Allahabad High Court and diffeired from the Lahore High Court (a). 


294B. Son’s rights after sale. — (^) Money decree against 
father . — AVTiere the father has contracted a debt for his 
own fcrsonal benefit, the creditor may obtain a money decree 
against the father alone, and may enforce the decree by attach- 
ment and sale of the entire coparcenary property including 
the sons’ interest therein. The sons, though not j^afties to the 
suit, are bound by the sale by reason of their pious duty to 
pay their father’s debt, and they cannot recover their share 
of the property unless they prove (and the burden lies upon 
them to prove) that the debt was contracted by the father 
for an immoral or illegal purpose. This rests on the theory 
that as the father can effect a sale loithout suit of the entire 


joint family property including his sons’ interest therein in 
favour of the creditor for the payment of an antecedent debt 
[s. 295], so the creditor may legally procure a sale of it by 
suit (b). The fundamental principle is that where joint family 


(z) Jagdish Prasad v. Hoshyar Singh (1929) 
51 All. 130, 115 I.C. 775, (’28) A.A. 
596 [F.B.]. 

(a) Bharamappa ^Jurdappa v. Hanmantappa 
Tippanna (1943) Bora. 568, (’43) A. B. 451. 


(5) JJsf. Nanomi Babnasin v. Modim ^lohun 
(1886) 13 (Jal. 21, 30, 13 I. A. 1 ; Haim’ 
samayyan v. Virasami (1898) 21 Mad. 
222, 224 ; Kiinkalx v. Ileshava (1888) 
11 Mad. 64, 70. 



DEBTS. 


361 


property is sold in execution of a decree, though ohtamed 
agaiust the father alone, and for a debt contracted by him for 
his own personal benefit, the sons cannot claim to recover their 
share of the property unless they show that the debt was con- 
tracted by the father to the knowledge of the lender (c) for 
an immoral or illegal purpose {d) and that thej gijrj^g|^£^had 
notice that it was so contracte,^(e). 


A distinction has, however, been made by the Judicial 
Committee between the case where the purchaser at the execu- 
tion sale is a stranger to the suit and the case where he is the 
decree-holder himself. The two leading cases on the subject 
are Mvddun Thakoor v. Kantoo Loll (/) and Suraj Bansi Koer 
V. Sheo Proshad {g). It has been held by the Judicial Com- 
mittee in those cases that where the purchaser is a stranger to 
the suit, the sons are not entitled to recover their share unless 
they prove (1) that the debt was contracted for an immoral 
or illegal purpose, and also (2) that the purchaser had notice 
that it was so contracted. It is not necessary for the purchaser 
to show that he made inquiry before the sale as to the nature of 
the debt. The purchaser in execution is not bound to go 
behind the decree (h) or further back than to see that there 
was a decree against the father, and that the property sold was 
properly liable to satisfy the decree if the decree had been 
properly passed against the father ; if he makes an inquiry 
to that extent and then purchases the property bona fide and 
for value, the sale is not liable to be set aside at the suit of the 
sons, and the purchaser is entitled to the entire property 
including the sons’ iuterest therein. “ Purchasers at an execu- 
tion sale, being strangers to the siut, if they have not notice 


(c) Sat Narain v. Behari Lai (1925) 52 I.A. 22, 
6 Lah. 1, 84 I.C. 883, (’25) A,PC. 18; 
fifinakshi Naidu v. Immudi (1889) 12 
Mad. 42, 16 I. A. 1 (original creditor 
advanced the loan bona fide). 

■(d) Mttddun Thakoor v. Kantoo Lall (1874) 14 
Beng. L. B. 187, 200, 1 I.A, 321, 384 ; 
Sura) Bunsi Koer v. Sheo Proshad (1878) 
6 Cal. 148, 171, 0 I.A. 88, 106 ; MiUlayan 
Cheitiar v. Sangili (1882) 6 Mad. 1, 9 I.A. 
128 ; Bhagbut Pershad v. Qirja Koer (1888) 
15 Cal. 717, 724, 15 I.A. 99, 105 ; Minakshi 
V. Immudi (1889) 12 jyiad. 142, 16 I.A. 
1; Sripat Singh v. Tagore (1917) 44 
Cal. 624, 44 I. A. 1, 39 I. C. 252, (’16) 
A.PC. 220 ; Brig Narain v. Mangla Prasad 
(1924) 51 I.A, 129, 40 All. 95, 77 I.C. 689, 
(’24) A.PC. 60 ; Karan Singh v. Bhup 
Simgh (1905) 27 AU. 16 (F.B.], See also 
cases cited in sub-secs. (2), (3), (4) and (5) ; 
Bhubaneshwar Prasad Narayan Singh v. 


Bihari Lai (1935) 14 Pat. 436, 156 I. C. 
350, ("35) A. P. 205. 

(e) Suraj Bansi Koer v. Sheo Proshad (1878) 

5 Cal. 148, 171, 6 I. A. 88, 108 ; Bhagbat 

Pershad v. Qiriga Koer (1888) 15 Cal. 
717, 724, 15 I.A. 99, 105 ; Jahan Singh 
V. Uardat Singh (1935) 57 All. 857, 152 
I.C. 487, (’35) A.A. 247; v. 

VUhal (1888) 12 Bom. 625. 

(/) (1874) 14 Beng. L. R. 187, 1 LA. 321. 

{g) (1878) 5 Cal. 148, 171, 6 I.A. 88, 106. See 
also MiUiayan Chettiar v. Sangili (1882) 

6 Mad. 1, 9 I. A, 128, where it was held 
that the law in the Madras Presidency 
13 not different. 

(A) In Mahabir Prasad v. Basdeo Singh (1884) 
6 All. 234, 238, it was held that the decree 
must be read with the plaint, so that 
the purchaser will be deemed to have 
notice o£ the allegations in the plaint. 


l. 294B (1] 



362 


HINDU HAW. 


294B (1) that the debts contracted for an immoral purpose were so, are 
not hound to make inquiry beyond what appears on the face of 
the proceedings.’"' These decisions have been followed in India 
in the under-mentioned cases (i). The principle on which 
these decisions rest is that one who has bona fide purchased 
joint family property under an execution, and bona fide paid 
a valuable consideration, is protected against the suit of the 
sons seeking to set aside the sale and to recover their share of 
the property. 

But it is different if the decree-holder is himself the pur- 
chaser. In that case, all that is necessary for the sons to prove, 
to entitle them to recover their share, is that the debt for which 
the decree was passed was contracted for an immoral purpose. 
It is not necessary for them to prove the further fact that the 
purchaser had notice that the debt was so contracted. The 
reason is that where the purchaser is the decree-holder in the 
suit, he does not stand in the same position as a stranger to 
the suit, and he carmot therefore protect himself under the 
plea of being a purchaser without notice {j). It is also well 
established that even if the purchaser is a stranger to the suit, 
the sale will be set aside to the extent of the sons’ interest 
in the property, if before the sale took place objection was 
taken by the sons that the debt for which the decree was obtain- 
ed was contracted for an immoral purpose, and it is eventually 
proved that- the debt was so contracted. The reason is that in 
such a case the purchaser will be taken to have had notice, 
actual or constructive, of the sons’ objection, and, therefore, 
to have purchased mth notice of the sons’ claim and subject 
to the result of any suit that may be brought by the sons to 
recover their share of the property {h). 

The same principles apply where the sale is sought to be 
set aside on the ground that there was in reality no debt owing 


(i) Bhawani Bal»h v. liam Dai (1891) l^f All, 

210, 223 ; TnirUjak y. Narayan (1884) 
8 481 ; Maharaj Bingh v. Balwant 

Singh (1900) 28 All. 508, 518-519; 

KrUhnagi v. VUhal (1888) 12 Bom. 625 ; 
Jahan Singh v. Aiardat Singh (1935) 57 
All. 357, 152I.C. 487, (’35) A.A 247. 

(j) Luchmun Dass v. Giridhur (1880) 5 Cal. 

855 ; Rumphvl Singh v. Deg Narain (1882) 
8 Cal. 517, 522 ; Beni Parshad v. Puran 
Chand (1890) 23 Cal. 262 ; Naioiayyan v. 
PonniLiami (1893) 10 Mad. 99, 103 ; 
Rarrmamayyan v. Viranami (1898) 21 
Mad. 222 ; Sripal Sinah v. Tagore (1917) 
44 I. A. 1, 44 Cal. 624, 39 I. C. 352, 
('10) A. PC. 220; 2'ritnlak BalkrUlma v. 


^arayan Damodar (1884) 8 Bom. 481 [the 
purchaser was the decree-holder's son] ; 
Joharnvil v. Rlnaih (1900) 24 Bora. 343 ; 
Ram Chandar v. Mvhammad (1928) 45 
All. 545, 73 I.C. 056, (’23) A.A. 591. 

(fc) Sura) Rvnsi Kocr v, Sheo Profihad (1878) 5 
Cal. 148, 0 I. A. 88 [debt held to be 
Immoral] ; Bhagbui Pershad v. Girga 
Koer (1888) 15 Cal. 717, 724, 16 I. A. 
99, 105 [debt held not to be immoral], 
Mahabir Prashad v. Basdeo (1884) 6 All. 
234 [debtr held to be immoral]. See also 
Maharag Singh v. Balwant Singh (1906) 
28 All 508, 518-510 [debt held to be 
immoral]. 



DEBTS. 


363 


by tbe faiber and that the decree was obtained by collusion 
between the creditor and the father. In such a case, if the 
purchaser be the decree-holder himself, the sons must show, 
to entitle them to succeed, that there was no debt in fact, 
and that is all that is necessary for them to prove (Z). But 
if the purchaser be a stranger to the suit, the sons must show 
not only that there was no debt due by the father, but also 
that the purchaser had notice that there was no such debt (m). 

The position, then, is that where joint family property 
is sold in execution of a decree against the father, then if the 
purchaser is the decree-holder himself, the sons are entitled 
to recover their interest merely by proof of the immorality 
or non-existence {n) of the debt. But if the purchaser is 
a stranger to the suit, they cannot recover their share unless 
they prove that the debt was contracted for an immoral or 
illegal purpose, and also that the purchaser had notice that it 
was so contracted. 


The distinction between the case where the purchaser is a stranger and where he is 
the decree-holder himself was, as stated above, laid down by the Judicial Committee in 
Muddun Thakor'a case and Suraj Bunsi Koer'a case. In some later cases, however, even 
where the purchaser was a stranger to the suit, the Judicial Committee appears to have 
laid down in general terms and without any reference to the necessity of notice, that the 
sons could successfully impeach a sale merely by proof of the immorality of the debt (o). 
But in all these cases, the fact of immorality had been disproved, so that the question 
of notice could not have arisen. Thus Mat. Nanomi Babuasin v. Modun Mohun {p), 
which was one of such cases, the Judicial Committee observed : “ All the sons can claim 
is that, not being parties to the sale or execution proceedings, they ought not to be barred 
from trying the fact or the nature of the debt in a suit of their own. Asanming they 
have such a right, it will avail them nothing unless they can prove that the debt was 
not such as to justify the sale.” The debt in that case was held not to be immoral, 
and the question of notice did not arise. In Sripai Singh v. Tagore (q), their Lordships 
said : “ The property in question was joint property, governed by the Mitakshara law. 
By that law a judgment against the father of the family cannot be executed against 
the whole of the joint family property, if the debt in reaped of which the judgment has been 
obtained teas a debt incurred for illegal or immoral purposes. In every other event it 
is open to the execution creditor to sell the whole of the estate in satisfaction of the 
judgment obtained against the father alone.” In this case also it was found that the 
■debt was not incurred for an immoral purpose ; moreover, the decree-holder himself 


(l) Beni Parshad v, Puran Chand (1896) 23 

Cal. 202 ; Ramfisamayyafi v, Virasami 
(1898) 21 Mad. 222. 

(m) Beni ParsTiad v. Puran Chand (1890) 23 

Cal. 262, 274-275 ; Mahabir Praead v. 
Basdeo Singh (1884) 6 All. 234, 238. 

•(n) Lakshmadu v. Ramudu & Ors. (1940) Mad, 
125, (’39) A.M. 807, 187 I.C. 816 ; Maha 
Deo V. Rambir Singh (1945) Lah. 67 {F.B.}. 


(o) Met. Nanomi Babuasin v. JHodun Jitohun 

(1885) 13 Cal. 21, 13 I. A. 1 ; Bhagbut 
Pershadv. Girja Koer (1888) 15 Cal. 717, 
724, 15 I.A. 105; M'^nakshi v. Immndi 
(1885) 12 Mad. 142, 10 I.A. 1 : i?ai Babu 
Mahabir Pershad v. Marhunda Nath (1880) 
17 Gal. 584, 17 I.A. 11. 

(p) (1885) 13 Cal. 21, 36, 13 I.A. 1, 18. 

(g) (1917) 44 Cal. 524, 532, 44 I.A. 1, 4, 39 I. C. 
252, CIO) A.PC. 220. 


>. 294B ri! 



364 


HINDU LAW. 


S.294B 

( 1 ). ( 2 ) 


was the purchaser. In JBrij Narain v. Mangla Prasad (r), their Lordships, after review- 
ing the earlier cases on the subject, laid down five propositions of which the second was 
as follows : " If he ia the father and the other members are the sons, he may, by incurring 
debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execu- 
tion proceeding upon a decree for payment of that debt.” But that was a case of a 
mortgage executed by the father for the payment of an antecedent debt and the question 
of notice was not referred to either in argument or in the judgment. In India too there 
have been cases in which it has been laid down that where the purchaser is a stranger 
to the suit, the sons can in a suit of their own successfully impeach the sale or resist 
the purchaser’s suit for possession merely by proof of the immorality of the debt. But in 
these cases also the face of immorality had been disproved, and the question of notice 
did not therefore arise («). 


Illustrations. 

(a) A and his son B are members of a joint family. A is indebted to C in the sum 
of Rs, 5,000. C obtains a personal decree against .^1 alone, and in execution of the 
decree attaches tlie whole coparcenary property belonging to the joint family. B objects 
to the attachment of his intei’est in the property on the ground that the moneys bor- 
rowed by his father A from G were borrowed for an immoral purpose. It is proved 
that the amount was borrowed for an immoral purpose. The Court wnll set aside the 
attachment to the extent of the son’s interest. Suppose now that B does not object to 
the attachment, and that the whole property including B's interest is sold in execution 
of the decree, and it is purchased by C, the decree-holder, and B sues C to set aside the 
sale on the ground that the debt contracted by his father was for an immoral purpose. 
If the son succeeds m showing that the debt was so contracted, the sale will be set aside 
to the extent of the son’s interest in the property. If the son fails to show that the 
debt was immoral, the sale will be upheld in its entirety. But if the property is pur- 
chased by a stranger to the suit, the son cannot recover his share unless he proves not 
only that the debt was contracted for an immoral purpose, but that the purchaser had 
notice that it was so contracted. 


(b) A and his son B are members of a joint family. C obtains a personal decree 
against A for Rs. 5,000 borrowed by A from C for his personal benefit, but not for an 
immoral purpose, A dies without paying the amount of the decree. C may, after .4’s 
death, attach not only .4 ’b share but also B’s share in the joint property, in other words 
attach the entire joint family property, and have the same sold in execution of the 
decree. The debt not having been contracted for an immoral purpose, the son’s right 
to take by survivorship gives way to the supreme obligation to pay the father’s debt. 
But if the debt was contracted for an immoral purpose, C could not after A'b death 
attach the interest either of A or B. The reason is that, as regards .d’s interest, it will 
pass by survivorship to B [s. 289 (2)], and as regards B’s interest, it cannot be held 
liable, the debt being of an immoral character. 


(2) Mortgage decree against father . — Tlie above rules 
apply not only to a sale m execution of a money decree against 
tbe father, but to a sale m execution of a mortgage decree against 
him. Tbis happens when the mortgage executed by the father 
is neither for legal necessity nor for the paynnent of an ante- 
cedent debt. If the mortgage is created either for legal 


ir) (1924) 51 l.A. 129, 139, 46 AU. 95. 104 
77 I.C. 680, (’24) A PC. 60. 

(«) Mala Din v. Gaya Din (1909) 31 All. 599, 
3 I.C. 24 tpurclxaser’s suit for posee^oo] ; 


Dulip Narain v. PaTmaoti (1920) 42 All. 
68, 07 I.C. 98, (’20) A.A. 310 ; Gajadhar 
V. Jadubir (1925) 47 AU. 122, 85 I.C. 31, 
(’25) A.A. 180 ; Narayanacharya v. Narso 
Krishna fl87C) 1 Bom. 262. 



DEBTS. 


365 


necessity or for an antecedent debt not tainted with immorality, 
the mortgage itself binds the sons’ interest in the property. 
If the mortgage is neither for legal necessity nor for an antece- 
dent debt, the mortgage as such is not operative on the sons’ 
interest; but the sons are nevertheless under a pious obligation 
to pay the mortgage debt qua debt. In such a case, if a 
decree is passed against the father on the mortgage for the sale of 
the whole of the mortgaged property, and the property is sold 
in execution of the mortgage decree, the sons, though not 
parties to the mortgage suit, are bound by the sale, unless they 
show that there was no debt owing by the father (t), or that 
the debt in respect of which the mortgage was executed was 
incurred by the father to the knowledge of the lender (u) 
for an immoral or illegal purpose (n) and that the purchaser 
not being the decree-holder had notice that the debt was so 
incurred (vide cases cited under 294B-1). See s. 296 (1), cl. ii. 
As to the sons’ remedies before sale, see sec. 293 (2). 


Illustration. 

A joint family consists of d father and sons. The father mortgages certain 
Immoveable property forming part of the joint family properties to secure a loan raised 
by him. The loan is not raised either for a legal necessity or for payment of an ante- 
cedent debt. The mortgagee sues the father alone and obtains a decree for the sale of 
the mortgaged property. The property is sold in execution, and it is purchased by the 
mortgagee himself. The sons, being under a pious obligation to pay their father’s debt, 
are bound by the sale unless they show that the debt was tainted with immorality. 
There is no distinction in such cases between a debt secured by a mortgage and an 
unsecured debt : Gajadhar v. Jadubir (1926) 47 All. 122, 85 I.C. 31, (’25) A. A. 180. 
Had the mortgage been for family necessities or for the discharge of an antecedent 
debt, the mortgage itself would have bound the son’s interest in the mortgaged property 
and the sale in execution would have passed the sons’ interest, not by virtue of the 
decree, but by virtue of the mortgage, 

(S) Execution 'purchaser’s suit for possession . — The rules 
laid down above apply also to a suit by a purchaser at an 
execution sale against the sons for possession of the property 
purchased by him (tp). 


(t) Ramcuamayyanv. Virasami (1898)21 MaU. 

222 . 

(u) Sat Narain v. Behari Lai (1925) 52 I. A. 

22, 0 Lah. 1, 84 I.C. 883, (’25) A.PC. 18. 
(t)) Suraj Bunsi Koer v. Sheo Proshad (1878) 
5 Cal. 148, 0 I.A. 88 ; Nanom^ Balnt- 
asin V. Modan Jifohun (1885) 13 Cal. 21, 13 
I.A. 1 ; Bhagbut Pershad v, Gina Koer 
(1888) 15 Cal. 717, 721, 724, 15 I.A. 99, 
104, 105 ; Lala Suraj Prosad v. Qolab 
Chand (1901) 28 Cal. 517; Jarana v. 
Nain Suleh ^1887) 9 All. 493, 494; Beni 
MadJu) V. Basdeo Patak (1890) 12 All. 


99 ; Bhatoani Bakhsh v. Ram Dai (1801) 
13 Allv 216 ; Pern Singh v. Pariah Singh 
(1892) 14 AU. 179 [F.B.l ; Gajadhar v. 
Jadubir (1925) 47 All. 122, 85 I.C. 31, 
(’25) A. A. 180 ; Kunhali v. Keshaia (1888) 
11 Mad. 64, 76 ; Tribeni v. Ramesray 
(1931) 10 Pat. 670, 136 I.C. 49, ('32) A.P. 
80 {F.B. 1 ; Johan Singh v. Hardat Singh 
(1935) 57 AU. 357, 152 I.C. 487, (’S5) 
A.A. 247. 

(lo) Trimbak v. Narayan Damodar (1884) 8 Bom. 
481 ; Mata Din v. Qaya Din (1909) 81 
All. 599, 3 I.C. 24. 


S. 294B 
(2). (3) 



366 


HINDU LAW. 


S. 294B (4) Burden of proving immoraliig of debt . — Where iu 

(4)» (5) resspect of their share the sons claim to set aside a sale in 

execution of a decree against the father, the burden lies upon 
them to prove that the debt was contracted for an immoral 
or illegal purpose {x). It is not necessary for the purchaser to 
show that there was a proper inquiry as to the purpose of the 
loan, or to prove that the money was borrowed in a case of 
necessity («/). 


The burden which lies upon the sons to prove the im- 
morality of the debt is not discharged by showdng that the 
father lived an extravagant and immoral life ; there must be a 
distmet coimection between the debt and the immorality set 
up by the sons (z). 


(-5) Construction of execution -proceedings. — It is stated 
above that where the father has contracted a debt/or his own 
personal benefit, the creditor may obtain a decree against the 
father alone, and may enforce the decree by attachment and 
sale of the entire joint family property including the sons’ 
interest therein. But though the creditor can in execution of 
his decree sell the entire joint family property, he is not obliged 
to do so. He may put up only the father’s interest for sale. 
If what is bought and sold is the father’s interest alone, the 
purchaser is not, except in some cases in Bombay, entitled 
to possession of any part of the property, and his only remedy 
is to bring a general suit for partition and for possession 
of the share which would be allotted to the father on such 
partition [s. 261 (I)]. But if what is bought and sold is the 
entire property, the purchaser is entitled to possession of the 
whole. It is, therefore, important in each case to inquire 
whether the sale passed the whole property including the son’s 
interest therein, or only the father’s interest in the property. 
The determination of this question depends mainly on the 
terms of the execution and sale proceedings, such as the appli- 
cation for execution, warrant of attachment, Avarrant of sale 
and sale certificate. The Court will iu each case look at the 


(x) Bhagl/ul J'ersfiad v. Otrja Koer (1888) 15 tal 
717, 724, 15 I.A. »!), 104; JUuddun 
Thakoor v. Kanloo Lall (1874) 14 Beug 
L. U. 187, 1 I. A. 321; (1878) 5 Cal. 
148, 6 I.A. 88, KUpra; (1885) 13 Cal. 
21, 13 I.A. 1 , supm; (1801) 13 All. 
210, supra; (1892) 14 All. 179 [F.B.], 
supra ." Brij Narain v. Mangla Prasad 
(1924) 40 All. 95, 51 I.A. 120, 70 I.C. 


089, (-24) A.PG. 50. 

(y) (1888) 15 Cal. 717, 724, 15 I.A. 99, 104, 
supra. 

(3) Bhagbut Perstiad V. Girja Koer (1888) 15 
Cal. 717, 15 I.A. 99; Ram Rattan V. 
liDsant liai (1921) 2 Lah. 203, 04 I. C. 
121, (’21) A.L. 205 ; Johan Singh v. Sardai 
Singh (1935) 57 All. 357, 152 I. C. 487, 
(■35) A. A. 247. 



DEBTS. 


367 


substance of the proceedings to see what the purchaser intended 
to buy and what he believed he was buying (a). “ In cases of 

this kind it is of the utmost importance that the substance, 
and not the mere technicalities, of the transaction should be 
regarded ” (6). The price paid by the purchaser is also an 
element to be taken into consideration (c). 

Th© following are some of the principles colled from decided cases : — 

(i) If the expressions by which the estate is conveyed to the purchaser [in execu- 
tion] are susceptible of application either to the entirety or to the father's 
coparcenary interest alone, the absence of the sons from the proceedings 
may be one material consideration. But if the fact be that the purchaser has 
bargained and paid for the entirety, he may clearly defend his title to it upon 
any ground which would have justified a sale if the sons had been brought 
in to oppose the execution proceedings *’ (d). 

(ii) The words “ right, title and interest '* are ambiguous. They may refer to 

the father’s interest only in the property or to the entire property. If it 
appears from the terms of the execution proceedings and from the intention of 
the parties that what was put up for sale and what was bought was the entire 
property, bat the property is described in the certificate of sale as “ the right, 
title and interest of the judgment-debtor,” the sale will nevertheless pass the 
entire property. The presence of the words “ right, title and interest ” in a 
sale certificate is consistent with the sale of every interest which the judgment, 
debtor might have sold, and does not necessarily import that when the father 
of a joint family is the judgment-debtor nothing is sold but his interest as a 
coparcener (e). But if it is clear from the terms of the execution proceed, 
ings that what was put up for sale was the “ right and share ” of the judgment- 
debtor alone in the property, the sale will pass only the father’s interest. 
Tho purchaser cannot claim the entire property merel}^ because the decree- 
holder could have brought the whole property to sale, had ho been so 
minded (/), 


(a) Demdyal v. Juydeep Naniin (1877) 3 Cal, 
108, 4 I, A. 247 ; Baboo Eurdey Nanan 
V. Rooder Perkash (1883) 10 Cal. 626, 
11 I.A. 20; Msl. Nanomi Babuasin v. 
Modun Mohun (1885) 13 Cal, 21, 13 I.A. 
1 ; DaxUaX Ram v. Meher Chand 0887) 
15 Cal. 70, U A. A. 187; Rai Babv 
Mahabir PersJiad v. Markunda Ealh 
(1889) 17 Cal. 584, 17 I.A. 11 ; Pretiarhi 
Chelliar v. Sangili Veera Pandia (1887) 
10 Mad. 241, 248, 14 I.A. 84, 85; 
ASimbuhnath v. Oolab Singh (1887) 14 Cal. 
572, 14 I.A. 77; (1888) 15 Cal, 717, 15 
I.A. 99, eupra; Minakshi v. Immiidi 
(1888) 12 Mad. 112, 16 I.A. 1 ; Abdul Aziz 
V. Appayasami (1903) 27 Mad, 131, 31 
I.A. 1 ; Sripat Singh v. Tagore (1917) 44 
I.A. 1, 44 Cal. 524, 39 I.C. 252, (’16) A.PC. 
220 ; Trimbak v, Narayan Damodar il88^) 
8 Bom. 481 ; Sakharam Shet v, Sitaram 
(1887) 11 Bom. 42; Krishnaji v. Vitkal 
(1888) 12 Bom. 625 ; Maruti v. Babaji 
(1891) 15 Bom. 87 ; Coorerji v. Deiosey 
(1893) 17 Bom. 718 ; Timmappa v. 
NarHnha (1013) 37 Bom. 331, 21 I.C 
123 ; Hanmandas v. Valabhdas (1919) 43 
Bom. 17, 46 I.C. 133, ('18) A. B. 101 ; 
Enyanand v. Daji Naraxn (1926) 50 Bom. 
793. 98 I.C. 754, ('20) A.B. 548 ; Kunhali 
V. Keshaia (1888) 11 Mad. 64; Rampfiid 
Suiijh V. Deg Narain (1882) 8 Cal. 517, 
527 ; Beni Parshad v. Puran Chand 
(1896) 23 Cal. 262 ; Pern Singh v. Partab 
(1802) 14 All 179 [F.B.J. 

(5) Sripat Singh v. 'Tagore (1916) 44 I.A. 1, 44 


Cal. 524. 39 I.C. 262, ('16) A.PC. 220; 
Kai Babu Mahabir Pershod v. Markunda 
yath (1880) 17 Cal. 684, 17 I.'A. 11 ; 
Coo’ycrji V. Deiisey (1893) 17 Bom, 718; 
Dayanand v, Da^i Narayan (1926) 60 
Bom. 703, 98 I.C. 754, (’26) A.B. 548. 

{c) Sitrd?hunath v. Golab Singh (1887) 14 Cal. 
572, 14 I.A. 77 ; Beni Parshad v. Puran 
Chand (1896) 23 Cal. 262, 278 ; (1920) 50 
Bom. 793, 799, 98 I.C. 754, (’26) A.B. 648, 
supra. 

l.d) Mst. Nanomi Babuasin v. Modvn Mohvn 
(1885) IS Col. 21, 36, 13 I.A. 1, 18. In 
Deendyal v. Jugdeep Narain (1877) 3 Cal. 
198, 4 I.A. 247, also there was an 
ambiguity. 

(e) (1889) 17 Cal. 684, 17 I.A. 11, supra; 
Bhabut Pershad v, Girja Koer (1888) 
15 Cal. 717, 721, 15 I.A. 99, (1885) 13 Cal. 
21, 13 I.A. 1, supra; Sakharam Shel v. 
Sitaram (1887) 11 Bom. 42. 
if) (1877) 3 Cal. 198, 4 I.A. 247. supra ; Baboo 
Hurdey Narain v. Rooder Perkash (1883) 
10 Col. 626, 11 I.A. 26 ; Pettachi Chetiiar v. 
Sangili Veera (1887) 10 Mad. 241, 14 I^. 
84 ; Abdul Aziz y, Appayasumi (1903)*27 
Mad. 131, 31 I.A. 1 ; Krishnaji v. withal 
(1888) 12 Bom. 626 ; Maruti v. Babaji 
(1891) 15 Bom. 87 ; Timmappay.Narsmha 
(1913) 37 Bom. 631, 21 I.C. 123; 
Oanmandas v. Valabhdas (1019) 43 Bom. 
17, 46 I.C. 133, (’IS) A.B. 101. As to 
High Court Circulars, see (1926) 50 Bom. 
793, 08 I.C. 754, (’26) A.B. 548, supra. 


S.294B(5) 



368 


HIXDU LAW. 


Ss. 
mm ( 5 ), 
294C 


(iii) The mere fact that no reference is made in the proclamation of sale to the son^s 
interest does not of itself afford a ground for holding that the son's interest 
did not pass at the sale (g). 

(iv) If the creditor sues the father alone, and a consent decree is obtained against 

the father, whereb5' the father agrees to pay a specified sum within a specified 
period and by way of security mortgages his “right, title and interest” m 
certain joint family property, and agrees that in the event of non-payment the 
mortgaged property shall be sold by auction, and the property is afterwards 
sold, and a certificate of sale is issued to the purchaser stating that “ whatever 
right, title and interest the judgment-debtor had in the said property, being 
extinguished from the date of the sale, is transferred to the purchaser,’' the 
purchaser is entitled to no more than the father's interest in the property. 
“ M'hon a man conveys his right and interest, and nothing more, he does not 
pnma facie intend to convey away also rights and interest presently' vested in 
others, even though the law may give him the power to do so.” In such a 
case, if it is alleged by the purchaser that the sons assented to the decree and 
the mortgage, he should join them as parties to the execution proceedings (A). 

(v) Whore a mortgage is executed by the father of joint family property, the Court 

must take it that the entire property was mortgaged, unless the sons show 
that what was mortgaged was the father’s interest only (t), or unless the 
mortgage itself purports to be one of the father’s interest only (j). Where 
the mortgage is of the entire property, and a decree is passed for sale of the 
property, the sale will pass the whole property to the purchaser, notwithstand- 
ing the words “right, title and interest of the judgment-debtor” in the 
certificate of sale (A). 

294C. Execution of decree against father after his death.— 
Where a decree has been passed against the father in respect 
of a debt incurred by him, and the father dies before the decree 
has been fully satisfied, the decree may be executed under 
sec. 53 of the Civil Procedure Code, 1908, by attachment 
and sale of the ancestral property in the hands of the sons, 
as if such property were the property of the deceased father 
which had come to the hands of the sons as his legal represen- 
tatives, unless the debt was incurred for an illegal or immoral 
purpose. If the sons contend that the debt was incurred 
for an immoral purpose, the question has to be determined 
in execution proceedings, and not in a separate suit (1). 
If the contention of the sons is that there is really no debt the 
question cannot be enquired into in execution proceedings, 
but only in a regular suit (tn). 


(g) (1920) 60 Bom. 793, 98 I.C. 754, ('26) A.B, 
648, supra. 

Simbhunatk v. Golab Singh (1887) 14 Cal 
572, 14 I.A. 77, 83. 

(i) Pem Singh v. Partab Singh (1892) 14 All. 

179 [F.B.l ; Bhagbut Pershad v. Oirja 
Koer (1888) 15 Cftl. 717, 721, 15 I A. 99. 

(j) See Sifnbhunath v. Golab Singh, ^pra. 

(k) Trimbach v. Narayan (1884) 8 Bora. 481. 

(Z) Code of Civil Procedure 1908, s. 63. Umed 


V. Goman Bhaiji (1896) 20 Bom. 386 ; 
Shitram v. Sakharam (1909) 33 Bom. 39, 
1 I.C. 459 ; Amar Chandra v. Sebak Chan- 
da (1907) 34 Cal. 642 [F.B.] ; Sheikh Karoo 
V. llameahtvar Sao (1921) 6 Pat. L. J. 451, 
460-462, 62 I. C. 905, (’23) A. P. 143 
[mortgage-decree agaln-st father] ; Narayan 
V. Sagunabat (1925) 49 Bom. 113, 85 I.C. 
181, (’25) A.B. 193. 

(m) Lakshmadu v. Itamudu Ors. (1940) 
Mad. 123, (’39) A.M. 867, 187 I.C. 816. 



DEBTS. 


369 


This sub-section is based on ss. 60 and 63 of the Civil Procedure Code, 1908. See 
MuUa’s Civil Procedure Code, notes to s. 63. No attachment is necessary where a final 
mortgage decree for the sale of the property has been passed against the father in his 
lifetime ; the property in that case is sold under and by virtue of the decree, without 
any previous attachment (n). 

S. 63 applies in the case of the sons of a judgment debtor only and not in the case 
of his brother (o). 

Sec. 63 does not apply to a case where the suit on a mortgage by the father was filed 
against the sons and grandsons, hut was dismissed against the latter. The share of the 
grandsons cannot be attached and sold as it was not covered by the decree (p) ; but this 
principle cannot be availed of by after bom sons and grandsons {q). 

Nor does s. 63 apply to a case where the suit against the father is filed after 
partition (r). 

If the father dies leaving sans and also his own father, and subsequently the father’s 
father dies, it has been held in Allahabad that the decree cannot be executed against 
the ancestral property in the hands of his sons (s). But this decision has been dissented 
from by the Punjab High Court It). It is submitted that the former case was incorrectly 
decided. 

295. Sale or mortgage of coparcenary property by father for 
payment of antecedent debt. — (i) Antecedent debt — The father of 
a joint Hindu family may sell or mortgage the joint family 
property including the sons’ interest therein to discharge a 
debt contracted by him for his own personal benefit, and such 
alienation binds the sons, provided — 

(a) the debt was antecedent to the alienation, and 

(b) it was not incurred for an immoral pui’pose {u). 

The validity of an alienation made to discharge ’an ante- 
cedent debt rests upon the pious duty of the son to discharge 
his father’s debt not tainted with immorality. The mere 
circumstance, however, of a pious obligation does not validate 
the alienation. To validate an ahenation so as to bind the 
son, there must also be an antecedent debt (r). Generally, 
there is no question of legal necessity in such a case (w). But 
where the antecedent debts carried no compound interest and 
yet the mortgage effected by the father to discharge them 


(n) Sheik Karoo v. Katneshwar Sao (1921) 6 
Pat. L.J. 451, 62 I.C. 905, (’23) A.P. 143. 
( 0 ) Sheo Qopal v. Firm Qanesh DorS Ram Qopal 
(1938) Luck. 241, 108 I.C. 208, ('37) A.O. 
327. 

(p) Raja Ram v. Raja Bakah Singh (1938) 

13 Luck. 61, 40 Bom. L.R. 277, 172 I.C. 5, 
(’38) A. PC. 7. 

iq) Raja Baksh Singh v. Ram Swarup (1944) 
Luck. 481. 

(r) Atnl Krishna Roy v. Lala Nandanji (1935) 

14 Pat. 732 [P.B.], 157 I.C. 53, (’35) A.P. 
276. 

(e) Binda Prasad v. Raj Ballabh (1926) 48 All. 

245, 91 I.C. 785, (’26) A.A. 220. 
it) Devi Das v. Jada Ram (1934) 15 Lah. 60, 


147 I.C. 225, ( 33) A.L. 857. 

(tt) Sat Narain v. Sri Kishen Das (1936) 63 I.A. 
884, 17 Lah. 644, 38 Bom. L. R. 1129. 
164 I. C, 6, (’36) A.PC. 277. 

(») Brij Narain Rai v. Mangla Prasad (1924) 
61 I.A. 129, 46 All. 95, 77 I.C. 689, (’24) 
A.PC. 50 ; Narain Prasad v. Samam^ingh 
(1917) 44 I.A. 163, 39 All. 500, 40 lSr284, 
(*17) A.PC. 41 : Jogi Das v. Ga^a Ram 
(1917) 21 C.1V.JS\ 957, 42 I.C. 791, ('17) 
A.PC. 70 : Chet Ram v. Ram Singh (1022) 
49 I.A. 228, 44 AU. 368, 67 I.C. 569, 
(’22) A.PC. 247,affms?. (1919) 41 All. 629, 
51.I.C, 119, (’19) A.A. 415. 

(fo) Rama Rao v. Banumantha (1929) 52 ITad. 
856, 121 I.C. 837, (’30) A.if. 326. 


Ss. 

294C,295 



370 


HINDU LAW. 


S. :M5(1) provided for compound interest at a high rate with quarterly- 
rests, to that extent, the onus is on the creditor to show that 
the loan could be obtained only on such terms and if no evidence 
is adduced the lender has not discharged the burden {x). 

“ Antecedent debt ” means antecedent in fact as well 
as in time, that is to say, that the debt must be truly indepen- 
dent of and not part of the transaction impeached (y). A borrow- 
ing made on the occasion of the grant of a mortgage is not an 
antecedent debt ( 2 ) [see ills. (1) to (4)]. 

To constitute a debt an “ antecedent ” debt it is not neces- 
sary that the prior and subsequent creditors should be different 
persons. All that is necessary is that the two transactions 
must be dissociated m time as well as in fact [a). Hence where 
a previous mortgage- deed is renewed in' favour of the same 
mortgagee, and the consideration for the subsequent mortgage 
deed is the amount due on the earlier one, the alienation would 
be one for an “ antecedent ” debt (6), unless the first debt 
was a mere device and was incurred merely for the sake of 
creating an antecedence in time and with a view to support 
the subsequent deed (c). Where a mortgage was executed by 
the members of a joint family in favour of a stranger, who 
was a partner in a business with the family, in settlement of 
accounts of the firm, it was held that the debt being antecedent 
to the mortgage, the mortgage was binding on the son’s share 
also (d). Where a father received certain sums of money on 
behalf of his minor widowed daughter imder a compromise 
decree and executed an indemnity bond undertaking to 
indemnify the defendants against all losses resulting from 
the minor plaintiff raising disputes after attaining majority, 
charging some immoveable property belonging to the joint 

(a:) Ikd liajaram Tukaram v. Maneklal Man- liharatpur State v. Sn Kxshen Das (1936) 

sukhlal (1932) D6 Bom. 36, 137 I.C. 717, 58 All. 804 [F.B.] 102 IC 642, (’36) 

(’32) A.B. 136. A.A. 327. 

(y) (19^ 51 I A. 129, 46 All. 95, 77 I.C. 689, Topan Das (1035) 13 Lah. 

i)U, svpTa, 024 

(2) V. Mata Prasad (1909) 31 All. 

176, 1^^ I.C. 479 [F.B,] ; Cfuxturhhuj (c) Itam liekha Singh v. Ganga Prasad (1927) 

G'ortndi7am(1923) 45 All. 407, 74 I.C. 71, 49 All 123, 97 I.C. 614, (’26) A.A. 545 

(’23) A.A. 218, dissenting irom Nathu v, IF.B.] ; Badri Prasad v. Madan Lai (1893) 

Kundan Lai (1911) 33 All. 242, 8 I. C. 15 All. 75, 80 [F.B.] ; t7ai iVaram v. MaAa- 

836 (mortgage to pay ofi pre-emption Mr Prosad (1927) 2 Luck. 220, 95 I.C. 857, 

decree] ; Shaik Jan v. Bikoo (1928) 7 Pat. ('26) A.O. 470 ; Sheo Ram v. Durga (1928) 

798, 116 I.C. 33, (’29) A.P. 130; Buta 3 Luck. 700, 108 I.C. 288, (’28) A O. 378 

Mol V. G'opai Singh (1930) 11 Lah. 164, [F.B.] ; Igtai 6‘ing/i v. Josmer iS'inph(1934) 

122 I.C. 480, (’30.) A.L. 1040. 15 Lah. 715, 153 I.C. 862, (’34) A.L. 290. 

(a) Ramkaran Thakur v. Baldeo Thdknr (1938) (d) Nachimuthu Ooundan v. Balasubramania 

17 Pat. 168, 173 T. C. 292, (’38) A.P. 44; Ooundan (1939) Mad. 422. 



DEBTS. 


371 


family, it was held that the sons’ share was not liable as there S. 295 
was no antecedence of debt (e). (1)'(3) 

The antecedent debt may be an unascertained sum of 
money. It may be a debt incurred in connection with a trade 
started by the father (/). 

(2) Burden of proving immorality of debt . — It is for the 
alienee to prove that the antecedent debt existed or that after 
due inquiries he, in good faith, beheved that it existed {g). 

The bm’den is then shifted upon the sons to prove that the 
debt was contracted by the father for an immoral or illegal 
purpose {h) and that the ahenee had notice that the debt was so 
contracted {i). It is not necessary for the alienee to show 
that he made proper inquiry as to the purpose of the loan, or to 
prove that the money was borrowed for the benefit of the 
family (;). 

The burden which hes upon the sons to prove the im- 
morality of the debt is not discharged by showing that the 
father lived an extravagant or immoral life ; there must be a 
direct connection between the debt apd the immorahty set up 
by the sons (k). 

(3) Alienation binds sons’ interest . — ^If the debt is antece- 
dent to the alienation, the ahenation is vahd in its entirety, and 
it will pass not only the father’s but also the sons’ mterest in 
the property. Thus if the ahenation is a sale of joint family 
property, the whole property wiU pass to the purchaser. 


(e) AUavenkalaramanna v. Palacherla Man- 
gamma <&; Ors, (1944) Mad. 807. 

{/) Bal Rajaram Tiikaram v. Maneklal Man- 
sukhlnl (1932) 50 Born. 36, 137 I.C, 117, 
(’32) A.B. 136. 

(g) Jamsetji v. Kashinath (1902) 26 Bora. 320, 
336-337 ; Jt^mna v. Nain Sukh (1887) 

9 All, 493 ; Chandradeo v. Mata Prasad 
(1909) 31 All. 176, 198-199, 1 I.C. 479 ; 
Sahib Singh v. Girdhari Lai (1923) 45 All. 
576, 73 I.C. 1024, (’24) A.A. 24; Sub- 
.ramanya v, 5a(iasira (1885) 8 Mad. 75. 
See Transfer of Property Act, 1887, 
s. 28. 

(A) Girdharee Lall v. Kanioo Lall (1874) 14 Beng. 

L. R. 187, 1 LA, 321 ; Suraj Bunsi Koer 
V. Sheo Proshad (1878) 5 Cal. 148, 6 I.A. 
88; Balwant Singh v. Clancey (1912) 39 ■ 
I.A. 109, 34 All. 296, 14 I.C. 029, affmg. 

28 All, 508 ; Joharmal v, Ek7iath (1900) 

24 Bom. 343 ; Natasayyan v, Ponnusami 
(1893) 16 Mad. 99 ; Raj Kishore v. Madan 
Qopal (1932) 13 Lah. 491, 143 I.C. 249, 
(’32) A.L. 636. 

(i) Suraj Bunsi Koer v. Sheo Proehad 6 I. A. 
88, 106, 5 Cal. 148, 171 ; Darsu Pandey 
V. BxkaTma)it Lai 3. All. 125. (The 
first part of the decision that the recital I 


in the sale deed is enough to prove 
the antecedent debt and other 
necessities is not correct ; but the second 
part relating to immorality and notice 
is correct.); Hanuman Singh v. JVtf- 
nak Ckand 6 All. 193, 199 ; Lai Singh v. 
DeoXaraxn Singh 8 AU. 279, 282. 

(j) Bhagbul Pershad v. Girja Koer (1888) 15 Cal. 
717, 724, 15 I.A. 99, 104 ; Babu Singh v. 
Bihari Lai (1908) 30 AH. 156 ; Tulsi Ram 
V, Bxshnath Prasad (1928) 50 All. 1, 105 
I.C. 885, (’27) A.A. 735. ^ 

(Jc) Sri Narain v. Lala Ragkuh^^^l^lZ) 17 
C.W.N. 124, 17 I.C. 75PPF.C.]; CAinto- 
manrao v. Kashinath (IWU) 14 Bom. 320 ; 
Dattatraya v. Vishnu (1912) 36 Bom. 
08, 12 I.C. 949 ; SUa Ram v. Zahm Singh 
(1886) 8 All. 231 ; Babu Singh v. 
Behanlal (1008) 30 AU. 156 : Tuhi Ram 
V. Bxshnath Prasad (1928) 50 All, 1, 105 
I.C. 885, (’27) A.A. 735 ; Rallia Ram v. 
Balmokand (1927) 8 Lah. 117, 101 I.C. 
830, (’27) A.L. 00 ; Ulfai Rai v. Teg 
Narain (1927) 8 Lah. 632, 106 I.C. 176, 
(’28) A.L. 83 ; Raj Kishore v. Madan 
Gopal (1932) 13 Lah. 491, 143 I.C. 249, 
(’32) A. L. 036. 



372 


HINDU LAW. 


S. 295 
(3)-(8) 


Again if the alienation is a mortgage, the mortgagee may 
obtain a mortgage decree against the father alone for the sale 
of the whole of the mortgaged property including the sons’ 
interest therein, and the sale m execution of the decree will 
bind the iuterest both of the father and the sons in the property. 

(4) Alienation after partition . — The father has no power 
to alienate his son’s share after a partition between him and 
the son, although the alienation may be in respect of a debt 
which was contracted before partition {1). 

(5) Alienation after attachment of sons share . — The father 
has no power to alienate his son’s share after it has been 
attached in execution of a decree. The decree may be one 
against the son in respect of a personal debt of the son, or it 
may be one against the father, or both against the father and 
the son, in respect of a personal debt of the father {m). 

(6) Whether a sale or mortgage executed by the father 
passes the whole family property or only the father’s interest 
therein depends on the terms of the deed {n). 

(7) If the alienation be one for legal necessity, it is not 
necessary, to bind the sons’ interest, to have recourse to the 
doctrine of antecedent debt (o). 

(5) The expression “ sons ” in this section includes grand- 
sons and great-grandsons. The expression “ father ” includes 
grandfather and great-grandfather. See s. 291. 


Jlluslraiions. 

(1) The father of a joint family borrows Rs. 2,000 from C for his own use. Sub- 
sequently he executes a mortgage of the joint family property to C to secure the debt. 
It is not proved that the money borrowed was used by the father for immoral purposes. 
The mortgage binds not only the father’s, but also his sons’ interest in the property. Here 
the debt is antecedent to the mortgage in fact as well as in time (p). 

(2) The father of a joint family governed by the Mitakshara law as applied in the 
United Provinces, mortgages the joint family property in 1883 to secure an advance made 
to him at the lime of the execution of the mortgage. In 1910 the mortgagee sues the father 
and his son for a sale of the mortgaged property. It is proved that the money was 
borrowed by the father for his oum 'personal benefit^ and not for any family necessity. Here 
the l(M^^aving been made at the time of the mortgage, there is no debt aniecederU to the 

mortgage is therefore wholly invalid. It does not bind oven the father’s 

Chettxar v. A’an^i^t Vtera (1087) 10 Mad. 
241, 14 I. A. 84 ; Bhagbat Pershad v. Girja 
Koer (1888) 15 CaJ. 717, 15 I.A. 99. 

(o) LqI Bahadur y. Ambxka Prasad (1925) 52 I.A. 

443, 47 All. 995, 91 I.C. 471, ('25) A.PC. 
264. 

(p) Madhuffudan v. Bhagwan (1929) 63 Bom. 

444, 118 I.C. 788, (’29) A.B. 213. 


''( 1 ) 

(ffl) 

(n) 


Bathna^^iyanchanar (1908) 18 Mad L.J. 
599 ; Knshnasami v, liamanami (1809) 
22' Mad. 619, 521. 

Subraya v. Nagappa (1909) 33 Bom. 264, 
2 I.C. 268. 

P«tn Singh v. Parta6 Singh (1892) 14 All. 
179 (F.B.l ; Simbhunath v. Golab Singh 
(1887) 14 Cal. 572, 14 I.A. 77; Pettuchx 



DEBTS. 


373 


share in the property. Nor is the mortgagee entitled even to a personal decree against S. 295 (8) 
the father or the sons, the claim for such decree being barred by limitation : Sah\i Ram 
V. Bhup Singh (1917) 44 I.A. 126, 39 All. 437, 39 I.C. 280, ('17) A.PC. 61. 

(3) S and his sons are members of a joint Hindu family governed by the Mitakshara 
taw as interpreted in the United Provinces. In 1905 S mortgages the joint family pro- 
perty to A. In 1907 S executes a second mortgage of the same property to B. In 1908 
S executes a mortgage of the property to C to pay off the earlier mortgages to A and B. 

C then sues S and his sons on the mortgage of 1 908. It is not proved that the mortgages 
to A and B were executed by C for family necessity. Here the mortgage to C having been 
made to pay off the antecedent debts due to A and B, it binds the whole property including 
the sons' interest therein, and C is entitled to a decree for sale of the whole property 
Brij Narain Eai v. Mangla Prasad (1923) 51 I.A. 129, 46 Ml. 95, 77 I.C. 689, (’24) A.PC. 

50; Anantu v. Ram Prasad (1924) 46 All. 295, 78 I.C. 619, (’24) A.A. 465; Bhim Singh 
V. Bam Singh (1924) 46 All. 301, 84 I.C. 13, (’24) A.A. 309 ; Oauri Shanher v. Sheonandan 
(1924) 46 All. 384, 78 I.C. 911, (’24) A.A. 543; Kanhaiya Lai v. Niranjati Lai (1925) 

47 All. 361, 86 I.C. 98, (’25) A.A. 367 ; Knldip v. Ram Bnjhawan (1924) 3 Pat. 425, 83 1.C. 

386, (’24) A.P. 464. [Note.-— It is unnecessary in such a case to inquire whether the 
mortgages to A and B were executed to pay off a debt antecedent to either of the two 
mortgages. The transaction impeached is the mortgage to C and that mortgage was 
executed to pay off the antecedent debts secured by the mortgages to A and B.'] 

(4) The father of a joint family governed by the Mitakshara law executed a 
usufructuary mortgage of the joint family property to secure an advance then made to 
him for his own personal benefit. He then sold the equity of redemption to the mortga- 
gee, the mortgage being discharged out of the price and the balance paid to him. After 
the father’s death, but during the life-time of his sons, his grandsons sued the purchaser 
to recover the property from him. It was held by the Judicial Committee that there being 
no debt antecedent to the first alienation, namely the mortgage, the mortgage and the sale 
were both invalid : Chet Ram v. Bam Singh (1922) 49 I.A. 228, 44 All. 368, 67 I.C. 569, 

(’22) A.PC. 247. This decision is clearly in conflict with the later decision in Brij Narain’a 
case set forth in ill. (3) above, and it can no longer be regarded as good law. The test 
now laid down in Brij Narain'a case [see ill. (3) above] is whether the transaction impeached, 
namely, the sale of the equity of redemption, was entered into to pay off an antecedent 
debt. There is no doubt that it was, the antecedent debt being the debt secured by the 
mortgage. If the case arose again, the sale would be treated as valid, as it was made to 
pay off an antecedent mortgage. Whether the mortgage itself was executed to pay off an 
antecedent debt is not material (q). 

(6) The father of a joint family governed by the Mitakshara law as administered in 
the United Provinces executed a deed of mortgage in 1900 of joint family property. In 
1 906 he sold the property for Bs. 13,000 of which Bs. 1,400 was paid to the mortgagee, the 
rest of the mortgage debt having been discharged long prior to 1906. The balance of the 
purchase money was applied by the father to his own purposes. It was held by the 
Judicial Committee that the sale could not bo supported as having been made to discharge 
an antecedent debt, and they upheld the decree of the Allahabad High Court setting 
aside the sale, upon the sons, who were the plaintiffs in the suit, paying Bs. 1,400 to the 
purchaser ; Jawahir Singh v. Vdai Prakash (1926) 63 I.A. 36, 48 All. 152, 93 
(’26) A.PC. 16. 

1. Brij Narain Ral v. Mangla Prasad (1924) 51 I.A. 129, 46 All. 95, 7^.C. 689, 

(’24) A.PC. 50. — The leading case on the subject is Brij Narain’a case. In that case 
the Judicial Committee, after observing that Sahv Bam'a case (r) must not be taken 

1 (’24) A.A. 465. 

1 (r) (1817) 44 I.A. 126, 39 All. 437, 39 I.C. 280. 


( 9 ) It is now BO held in Anantu v. Ram Prasad 
(1924) 46 AU. 295, 296-297, 78 I.C. 610, 



374 


HINDU LAW. 


S. 295 (8) 


to decide more than what was necessary for the judgment, namely, that a debt created 
by the mortgage itself is not an antecedent debt, expressed their dissent from several 
dicta in that case, and laid down the following propositions : — 

(1) The managing member of a joint undivided estate cannot alienate or burden 

the estate qua manager except for purposes of necessity [see s. 242]. 

(2) If he is the father and the other members are the sons he may, by incurring debt, 

so long as it is not for an immoral purpose, lay the estate open to be taken 

in execution proceedings upon a decree for payment of that debt [see s. 294], 

(3) If he pmpoi’ts to burden the estate by mortgage, then unless that mortgage 

is to discharge an antecedent debt, it would not bind the estate [see s. 295], 

(4) Antecedent debt means antecedent in fact as well as in time, that is to say, 

that the debt must be truly independent of, and not part of, the transaction 

impeached [see s. 295]. 

(5) There is no rule that this result is affected by the question whether the father 

who contracted the debt or burdened the estate, is alive or dead. 

2. Antecedent, — In Sahu Rani’s case (s), their Lordships of the Privy Council 
speak of the doctrine of antecedent debt as having “ arisen from the necessity of protect- 
ing the rights of third persons.’* In Brij Narain’a case thodoctiino is described as a 
part of the doctrine of pious obligation. The latter view must bo taken to supersede, 
the former view. 

There was at one time a conflict of opinion as to the meaning of “ antece- 
dent debt.” According to the Allahabad and Madras decisions, an antecedent debt 
meant a debt which existed prior to the date of sale or mortgage; money received at 
the time of eale or mortgage was not regarded as an antecedent debt According to 
the Calcutta and Bombay rulings, a debt, though not existing to prior the date of sale 
or mortgage, was treated as an antecedent debt, if it was put into litigation in a subsequent 
suit ; that is to say, if the father borrowed moneys on a mortgage of joint family property, 
and the sons subsequently sued to set aside the mortgage, the mortgage was uplield on the 
ground that the debt secured by it was antecedent to the suit (u). This was too fantastic a 
view to be taken of an antecedent debt. The earlier cases w'ere reviewed by the Privy 
Council in Brij Narain Rai v. Mangla Frasad [see ill. (3)]. The test there laid down 
whether the transaction impeached was entered into to pay off an antecedent debt, that 
is, a debt antecedent to the transaction [see the 4th proposition in note 1 above]. 

If the father of a joint Hindu familj^ borrows money in 1918 on a promissory note 
for his own personal benefit, and, being unable to pay the debt, mortgages the joint family 
property in 1920, it is clearly a case of a debt antecedent to the mortgage and the mortgage 
binds his sons. But if no debt was contracted by the father antecedent to the mortgage, 
and a loan was obtained by him for the first time at the time when the mortgage was 
executed by him, the loan could not be regarded as an antecedent debt. 


Suppose now that the father executes a mortgage to A of joint family property to 
secure an advance of Rs. 1,500 then made to him. [Here the mortgage is invalid, there 
being no antecedent debt.] He then borrows Rs. 2,000 from B and executes a mortgage 
to B to pay off the mortgage to A. Is the mortgage to B binding on the sons ? Prior 
to the decision in Brij Narain RaVs case there w'as a conflict of opinion whether the mort- 
gage to B could be treated as one for payment of an antecedent debt. It was held by 


(«) Ibid. 

(t) Chandradeo v. Mata Prasad (1909) 31 All. 
176, 190, 1 I.C. 479 [mortgage) ; 

Ham Dayal v. Ajudhia Prasad (1900) 28 
All, 328 [sale] ; V enkataramaTiaya v. Venial^ 
aramana (1006) 29 Mad. 200 [mortgage] 


^«) Larhmun Das v. Gindhur (1880) 5 Cal. 855 
[V.B.] ; Khalilul v. Gobind (1893) 20 Cul. 
328, 346 ; Kxshan v. Tipan Pershad (1907) 
34 Cal. 735, 747; Chiniamanrae v. 
Kashinaih (1890) 14 Bom. 320, 324-325 ; 
DaUatraya v. Vishnu (1912) 36 Born. 08, 
12 I.C. 949. 



DEBTS. 


375 


the High Courts of .iUahabiid (v) and Tjihoie (te), that she inoitgajre to J not haTsug .mm 

been made to pay ofi an antecedent debt, the subsequent 1.& B nJso -vrludb 

made to pay off the mortgage to A could not be treated as odb for paTT&ecDi m b-® sjrsteriB- 

dent debt ; in other words, it was held that for a debt to be an anteoetdernt dsH, tt must 

be antecedent to the alienation, namely, the mortgage to A, lund not mer'oly 

dent to the oltewatiow. impea^htd, namely, the mortgage to B, On the other hamd il5"u^= 

held by the High Courts of Madras (ar) and Patna ty)» that the m'Ditgage to B \ra5= binding 

on the sons as it was made to pay off an antecedent debt, beiiag liifr debt «niuire,d by the 

inortgago to ^4, In Brij JVaroin J?ai'e case the Privy C*c--irD;eil b^jld iiuit tht x'jew tuh-ou 

by the Madras High Court was correct. 

The antecedence must be renh The antectdence would ht uru’sii/j if the iatUta' 
borrowed money on a promissory note vith the objeci li-i Umyiii'df iiluit iv should 

form part on a mortgage to be subsequently exet-uU-d by him (ii. ‘i^hej-e no inortuatn 
was intended at the time of advance of the loan hat there was an arreeineiii to 
a mortgage if and when called upon and a mortgage was subiiciqiaantlj exutiiirrffd, it v/us 
held that the mortgage w'as supported by antecedent debt {a}. 

In a suit on a mortgage bond dated 16-1'1922 for Jts. exsical-ad Iw B andbifi 

3 nephews for the purpose of paying off 

(1) Rs. 750 the balance of consideration due under u sale deed dat.ed ^O-T-IFXP 
obtained by B and his nephew P (brother of the 3 nephews xibov& momiiiiiisd i 

(2) Rs. 1,500 balance of consideration dated 19-11-1921 in fi*Tatn of the Diorejaud 
3 nephews of B and a minor son of P and a son of B. the rurt was ciouteHteti 
bj'thesonsof the3nephews(defendants3to7>andagraiidsi:fnof B (dfliendznit 8) 

(B haring died) on the ground that there was do legal taew^esHuj, Jtw'Gihdid 

(1) that there was no real antecedency between the suit mori-cage bond and the 
sale-deed of 1921 but that the balance dee under the salt-deed of iid & wtis 
an antecedent debt, 

(2) even as to the latter item the mortgage wasnotvalid agadnsi ihe (didmidancB 
3 to 7) as thoir fathers executed it not for their own antecedent dtim but for 
that of their undo B and brother P, 

(3) that tlio grandson of B (defendant 8) waa not liable a? the pi-oporiaan for v;:iHdh B 
iH liable on the suit mortgage bond could not be determiiaed (bi). 

ThfU'o must b«) a rciil debt duo by the father. Therefore, where the only prior dfibt 
M’as <hio Ijy a tlnvd party and the father executed as surety a bypoi3iec!atisr=s bacacl m 
favour of tlm cri^ilitor, it wjim hold not to bo binding on the sons’ shares [c> 

Wluu'ii a fnt.lit^r at the time of taking a mortgage agrees to pay off a pricar mesTuSEgrf* 
the ohJigatiuii bo nndortuU<'n is an * untoctHlont debt* which will suppon a mc-rres^ oi 
joint lamily projini'ty hubMoquoutly executed by the father in fevour of ihe prictnucaTEagsi' 
in fubilmcjit of tlm obligation {d), 

jt hiiB bt-^n hold thiit wJio/'o tho father mortgages joint family pro^iarty iiff 

Si pivor njoiigiigc ojj JjJij nrparnUi pfO|HJj’ty Jt cannot be said that the was jnn? 


Iti Hfij/uifiiiii. V, M'S-tidUl (UjIU) 41 AU, 235, 35 i 
J,C, 301, f'IO> A, A, 324; ilayn Suru/f v. ) 
Uha/di mn>jh (1021) 43 All, 703, 04 iX. 

A,A. 113. i 

{ijt}) J,akhu Msit V. hUitt'n Uas (1022/ 3 Lah, 74, . 

*50 i.C, 40«, ('22) A.L, 201. , 

fj) V. latuihxi. (lOXo) 42 Had, 71J, i 

52 LC 525, A.M. 75 [IMU ^ 

(y) y, llnikumftf I i 023 ) 0 Pat. L.3. 520, i 

(J2 IX. 132. ('23) A.P. 447 JIan 

pTOSfid V. Htjurmdfa (1022> I Fat, 5'&6, 06 ■. 


I.C. 94D,r22)A.P. 

(Z) (1921; *3 AH, 702^ S4I.C, '"ii ' JL.A.in 1: 
tu^a. 

(a) VenkalrrsmiUiPasF.i'sr.Imstfr’^j^tBiiii / 

{1939j Msid. iF.'E 1 7- ' 

(&■) T, .S’aifcSi a'L 

I.C. 4! 5, C-StlA-A .‘ita. 

(ej CriWJi;® Sarwi V, uaiTi(‘ii)x. iut' 

ChaSiO^r Sm-K T. .VtJlh -fcl- 

fiJsi A.jx. *ji; 



376 


HINDU LAW. 


Ss. for the payment of an antecedent debt (e). In this case the separate property consisted 
295, 296 (1) oj property which was inherited by the father from his cousin and that property was 
mortgaged by the cousin during his life-time. 

Tivie-barred debt . — The antecedent debt may be a time-barred debt. See s. 299 (2) 
below. 


What Is a debt 

Unliquidated damages. — “Debt” ordinarily means a liquidated or ascertained sum 
of money as distinguished from unliquidated damages for beach of contract or for a 
tort. If a decree has been obtained against the father for damages for breach of contract 
or for a tort, the judgment debt constitutes a debt within the meaning of this section. 
But what if the amount of damages is not fixed by a decree or otherwise ? Is the liability 
for damages a debt within this section ? The question arose in a recent case before 
the Judicial Committee, but it was not decided (/). That was a case of a breach of 
contract by the father. It would seem on principle that a liability for damages consti- 
tutes a debt nothin this section ; if the liability is antecedent to the alienation, the aliena- 
tion will bo binding on the sons though the amount of damages is fixed on the very day 
on which the alienation is made. 

Debt due but not payable . — A debt may be an antecedent debt though the due date 
of payment has not yet arrived. Hence an alienation even before the due date of 
payment would be an alienation for an antecedent debt (g). 

Price payable under a pre-emption decree . — A pre-emption decree does not carry any 
order for payment. It gives an option to the pre-emptor to obtain the property on making 
payment. There being thus no obligation to pay, the purchase money fixed by the decree 
does not constitute a debt (h). See Code of Civil Procedure, 1908, 0. 20, r. 16. 


3. The father alone can alienate the son’s share.— In the case of a joint 
family, the privilege of alienating the whole of the joint family property for payment 
of an antecedent debt is the privilege only of the father, the grandfather and the great- 
grandfather. No other person has any such privilege. Hence if a joint family consists of 
two brothers A and B of whom H is a minor, A may alienate, if he so desires, his own 
share in the joint family property to pay off an antecedent debt of his father F, but he has 
no power to alienate the share of his brother B, in the property, though F is also the father 
of B (f). Similarly if a joint family consists of A and his brother’s son B, B being a 
minor, A may alienate his own share in joint family property to pay an antecedent debt 
of bis father G, but he has no power to alienate B’s share to discharge that debt though 
O is the grandfather of B (J). 

296. Alienation by father neither for legal necessity nor 
for antecedent debt— Son’s liability.— (■^) It is clear from 
what has been stated above that an alienation by the father 
of joint family property neither for a legal necessity nor for the 
payment of an antecedent debt does not bind the son’s interest 
in the property. In Bengal and the United Provinces it does 
not bind even the father’s interest in the property [ss. 268, 269]. 
But though the alienation as such does not bind the son’s 


(«) Sand ImU v. Umrai (1920) 1 Luck 360 
93 1. C. 655, (’26) A.O. 321. 

(/) Mian Karim Bakiish v. Dargah Pir (1931) 35 
C.W.N. 1221, 133 I.C. 728, (’31) A.PC. 243 
{}) Damodaram v. Bannlal (1928) 61 Mad 711 
111 I.C. 297, ( ’28) A.M. 566. 


(/i) Kishen Sakai v. Ragkunaih (1929) 51 All. 

473, 116 I.C. 488, (’29) A. A. 139. 

(i) A-nantu v. Ram Prasad (1024) 46 All. 295, 
78 I.C. 619, (’24) A. A. 465. 

(/) Rameshra v. Kalpu Rai (1924) 46 All. 264, 
84 I.C. 84, (’24) A.A. 638. 



DEBTS. 


interest, the son being under a pious obligation to pay iii® 
father’s debts twt tainted with immorality, and the i«iiok of 
the ancestral estate being liable for the payment of such debti?. 
the alienee is entitled to realise the debt, that is, the money paisi 
by the alienee to the father in consideration of the alienation, 
out of the entire ancestral estate (k). 

By far the largest niunber of eases in vrhich the above 
principle has been applied are cases of mortgage by the father 
of joint family property belonging to himself and liis sons, where 
the mortgage is neither for legal necessity nor for paynieinr 
of an antecedent debt. In such a case the son himself may 
sue for a declaration that the mortgage is not binding on 
his share and if he proves that the debt was contracted for 
illegal or immoral purposes to the knowledge of the lender 
he will be granted a declaration that the mortgage and the 
debt are not binding on him (1). In all these cases the mort- 
gage qua mortgage caimot be enforced against the sons’ interest 
in the mortgaged property, and no mortgage decree for the sale 
of that interest can be passed against the son. But the son is 
nevertheless under a pious obligation to pay the mortgage debt 
qua debt if it was not contracted for an illegal or immoral 
purpose. The son may therefore be successfully sued for the 
father’s debt, and the decree passed in such suit may be enforced 
in execution by sale of the entire ancestral estate including 
the sons’ interest therein (m). Cases imder this head may 
be divided into three classes, namely — 

(i) Where the suit to enforce the mortgage is brought 
both against the father and the sons. 

(ii) "WTiere such suit is brought against the father alone. 

{Hi) W^here such suit is brought against the sons after 
the father’s death. 


lA) 5ami Ayyangar v. PanTiammal (1898) 21 i 
Mad. 28 ; Venkataramanaya v. Venkata- 
ramana (1906) 29 Slad. 200 [F.B.]; 

Kandammx v. Ku-ppu (1920) 43 Mad. 421, 

55 I.C. 320, (’20) A.M. 479; Ramaeami 
V. Ulaganatka (1899) 22 Mad. 49 (F.B.) ; 
Periasami v. Seetharama (1904) 27 Mad. 
243 (F.B.J ; Luc/tnv 2 n X)ae9 v. Gindhur 
(18S0) 5 Cal. 855 (F.B.l; Gunga Prasad ! 
V. Ajudhia Pershad (1882) 8 Cal. 131 ; s 
Kkalibd Rahman v. GoHnd Pershad (1893) l 
20 Cal. 328 ; Kishun Penhad v. Tipan 
Perghad (1907) 34 Cal. 735 ; Rrijnatidan v. 
Bidya Pragad (1915) 42 Cal. 1068, 29 I.C. 
029, {'16) A.C. 279 IF.B.] ; Jamna v. 2fain 
Sukh (1837) 9 All. 493 ; Chandradeo v. 


ilato Prasad (1909) 31 Ail. 176, 194, 
208, 1 I.C. 479 [F.B.] ; Kofi Shankar v. 
Navcab Singh (1909) 31 AU. 507, 3 I. C. 
909 ; Narsingh v. Lalji (1901) 23 All. 2D6 ; 
Daltaraya v. FisArm (1912) 36 Bom. 68, 
12 I.C. 949 ; Ckintamanrav v. Kasthinath 
(1890) 14 Bom. 320 : Potoranipa Lin- 
gayya th Ore. v, Vupputun Pannayya 
<t Ore. (1942) Mad. 502, 198 I.C. 588, (’42) 
A.M. 183. 

(1) Eruhnaii Lakshman v. Tithal (1SS9) 12 
Bom. *625. 

(m) Kandasamiy^ Kuppu (1920) 43 Mad. 421. 55 
I C. 320, (’20) A.M. 479 ; Chandradeo 
V. Afoto Praead (1909) 31 AU. 176, 194, 1 
I.C. 479 (F.B.]. 



378 


HINDU LAW. 


S. 296 (1) 


(i) In dealing with these cases it must be remembered 
that according to the law as administered in Madras and 
Bombay, a coparcener can mortgage his undivided interest in 
coparcenary property, and the mortgage binds his interest in 
the property [s. 268].- In Bengal and the United Provinces 
no coparcener can mortgage even his own interest in the copar- 
cenary property ivithout the consent of the other coparceners, 
with the result that the mortgage does not bind even the mort- 
gagor's share in the property [s. 269]. Where a suit, 
therefore, is brought against the father and sons on a mortgage 
executed by the father neither for legal necessity nor for pay- 
ment of an antecedent debt, the mortgagor in Madras is entitled 
to (1) a mortgage decree against the father for the sale of his 
interest, and (2) if the net proceeds of the sale of the father’s 
interest are found to be insufficient to pay the amount due to 
the mortgagee, also to a decree against the father personally under 
0. 34, r. 6, of the Code of Civil Procedure, 1908, and a decree for 


the sale of the entire joint family property including the sons, 
interest therein (n). In Bombay, the mortgage decree directs 
a sale in execution of the entire joint family property including 
the sons’ interest therein instead of directing a sale piecemeal 
as in Madras (o). In the United Provinces, the mortgage does 
not bind even the father’s interest in the property. Hence no 
mortgage decree can be passed for the sale even of the father’s 
interest. The only decree that can be passed is a money decree 
against the father and a decree for a sale in execution of 
the entire joint family property including the sons’ interest 
therein (p). The result, it seems, should be the same in Bengal, 
but it has there been held that the mortgagee is entitled to a 
mortgage decree against the father for the sale of his interest in 
the property, and also to a decree, the net proceeds of the sale 
of the father’s interest be insufficient to pay the amount due to 
the mortgagee under the decree, for the sale of the sons’ interest 
in the entire joint family property so far as may be necessary 
to satisfy the amount due {q). But where the mortgagee 


(71) (1920) 43 MaU. 421, r>5 I.C. 320. (’20) A M. 
479, supra ; Sami Ayyanqar v. Voonnam- 
mal (1897) 21 ilad 28 ; Vefikutaramunaya 
V. Venkataramanna (1905) 29 Mad. 200 
[F.B.]. 

(o) Daitalraya v. Vishnu (1912) 30 Bom. 68, 

12 I. C. 949 ", Cfontamanraa v. Kashinath 
(1890) 14 Bom. 320. 

(p) Ealishankar v. Nawab Singh (1900) 31 AU, 

507 , 3 I . C 909 ; Chandradeo v. Mala 
Prasad (1909) 31 All. 176, 208, 1 I.C. 


479 [F B.] : Jumna v yum Sukh (1887) 
U All. 493; Jai yaraia v. Mahabir 
Prasad (1927) 2 Luck. 220, 230, 05 I.C. 
857^ (’26) A.O. 470. 

Kiskun Ptrshad v, Tipan Pershad (1907) 34 
Cal. 735 ; Luchmun Dass v. GiruMur(1880) 
5 Cal. 855 [F.B.] ; Gunga Proshad v. 
Ajudhta Pershad (1882) 8 Cal. 131: 
Khaliiul Rahman v. Gobind Persad (1893) 
20 Cal. 328 ; Brijnandan v. Ridya Prasad 
(1915) 42 Cal. 1008, 29 I.C. 029, '(’10) A.C. 
279 [F.B.]. 



DEBTS. 


379 


asks for a money decree against the father only and not against 
the son or where the suit was dismissed against the sons (r), 
the decree carmot he executed against the son’s interest in 
the joint family property (s). See note below, “Consideration 
of Calcutta cases referred to in this section.” 


(ii) The next case is where the mortgagee sues the father 
alone. In such a case the mortgagee may, at his option, 
obtain a simple money decree against the father for the whole 
of the mortgage debt, and have the entire joint family property, 
including the sons’ interest therein, sold in execution of the 
decree (i). The sons, though not parties to the suit, are bound by 
the sale by reason of their pious duty to pay their father’s 
debt and they cannot recover their share of the property unless 
they prove that the debt was contracted by the father for an 
immoral purpose [s. 294]. 


Or the mortgagee may, at his option, obtain a mortgage 
decree for the sale of the mortgaged property. In this case 
also, if the entire mortgaged property is sold in execution of 
the decree, the sons, though not parties to the suit, are not entitled 
to recover their share of the property unless the debt was con- 
tracted by the father for an immoral purpose [see the cases cited 
in s. 294 B (2), pp. 363-364]. This rule has not been altered by 
s. 85 of the Transfer of Property Act, 1882, now replaced by 
0. 34, r. 1, of the Code of Civil Procedure, 1908. The effect 
of the decisions since the passing of the Transfer of Property 
Act is that where ancestral property belonging to a joint family 
has been sold in execution of a decree for sale on a mortgage 
executed by the father for his sole benefit, the sons camiot 
mamtain a suit for redemption of their interest in the property 
sold solely upon the ground that they had not been made 
parties to the suit of the mortgagee, nor is their position improv- 
ed by the fact that the property at the execution sale was 
purchased by the mortgagee. Their suit must be based upon 
some ground which would free them from liability as sons in a 
joint Hindu family to pay their father’s debts, namely, the non- 


(r) Keaho liam v. Musammat Ham Dularx{Vd\2.) 

17 Luck. 319, 196 I.C. 680, (’42) A.O. 9. 
(«) Jainaiayan Mulchand v. 5onojt (1938) 
Nag. 130, 174 I. C. 021, (’38) A. N. 24; 
Jiijai liaj Singh v, Itam Padaratk (1936) 


11 Luck. 523, 158 I.C. 490, (’36) A.O. 139. 
(S) la the mortgagee entitled to have the 
mortgaged property sold ? See Code of 
Civil Procedure, 190^ 0. 34, r. 14. 


S.296 (1) 



380 


HINDU LAW. 


S. 296 
( 1 ).( 2 ) 


existence of the debt or the immoral character of the debt (m), 


As to the sons’ remedy before suit, see sec, 294A {2). 


(iii) The last case is where the suit is brought by the mort- 
gagee against the sons after the father’s death. In this case 
the mortgagee may obtain a money decree against the sons 
which may be enforced by a sale of the entire joint family 
property, unless the suit against the sons is barred by limitation 
[sec. 293 (2)]. He is also entitled, in Bombay {v) and Madras, 
to a mortgage decree limited to the father’s interest in the 
mortgaged property, provided that the suit as a mortgage 
suit is not barred by limitation. In the United Provinces 
no mortgage decree can be passed against the father’s interest 
whether the father be alive or dead ; it follows that if the suit 
against the sons is barred by limitation, the mortgagee has 
no remedy at all in respect of his claim [w). There is no Cal- 
cutta decision bearing on the question whether a mortgage 
decree can be passed against the father’s interest after his 
death {x). 

(2) Where the debt is immoral . — If the debt contracted 
by the father is tainted with immorality, the mortgagee is not 
entitled to proceed against the sons’ interest at all. All that 
he is entitled to, in Bombay and Madras, is a mortgage decree 
limited to the father’s interest in the mortgaged property. 
So too, it seems, in Bengal. In the United Provinces, a 
mortgage by the father of his own undivided interest without 
the consent of the sons does not bind even the father’s interest 
in the property, and the mortgagee is not entitled to a mort- 
gage decree limited even to that interest. But he may obtain 
a money decree against the father which he may execute by 
a sale of the father’s interest in the joint family estate {y). 

Conaideraliun of CalcuUa cases referred to in the secticm . — The principle that a sale of 
mortgaged propertpy in execution of a mortgage decree passed against the father alone on a 
mortgage executed by him neither for legal necessity nor for an antecedent debt, passes 


(u) Debi Singh v. Jia i?am (1903) 25 All. 214 i 
[F.B.l; Lai Singh v. Pulandar Singh I 
{190b) 28 All, 182 : Balwant Singh v. 
Aman Singh (19]^p3 All, 7, 7 I. C. 112, 
Kehri Singh v Cfiunni Lai (1911) 33 
All. 436, 9 I. < 470; Gajadhar v, Ja- 

dubir (1925) 47 122, 35 I C. 31, (’25) 

A. A, 180 ; Ra'mm.'mayyan v. Viraeamx 
(1898) 2] Mad. 222 ; Palani v. Uangayya 
(1899) 22 Mad, 207 , Ramkrishna v. 
Vinayak (1910) 34 Bom. 354, 6 I.C, 967 ; 
Jahan Singh v. Uardat Singh (1035) 
57 All. 357, 152 I.C. 487, (’35) A.A. 247. 
In Bhaioani Prasad v. Kallu (1895) 17 All, 
537 [F.B.l, the sons’ suit was brought 


before sale. See also Eanhaiya Lai v. 
Rag Bahadur (1902) 24 All. 211 ; Lala 
Suraj V. Gulab Chand (1901) 28 Cal. 517. 

(o) See Chinlamanrav v. Kaskinaih (1890) 14 
Bom. 320. 

(v7) See Chandradso Singh v. Mata Prasad (1909) 
31 All. 176, 179, 1 I.C. 479 [F.B.l. 

(*) See Madho Parshad v. Mehrban Singh (1890) 
18 Cal. 157, 17 I. A. 194, which was a case 
of sale. 

(y) S/iiro Nath v. Tulsi Ram (1920) 48 All. 
1, 89 I.C. 480, (’25) A. A. 801. But 
see Code of Civil Procedure, 1908, 0. 34, 
r. 14. 



DEBTS. 


381 


not only the father’s, but the sons’ interest in the property [sub-seo. (1) (ii)b was estttlj. 
lished by the rulings of the Privy Council in Mtl. Nanomi v. Mmlun (i), decided in INHI) 
and Bhagbnt v. Qirja Koer (u), decided in 1888. The principle that no dfcrrr 

can be passed against the sons in a suit on such a mortgage was first lairl down by a Pull 
Bench of the Calcutta High Court in 1880 in the case of Luthmun Dmh v, Oiridhur (i), 
In two later cases (c), it was held by the Court of Calcutta that since a »nh in nxmi’ 
tion of a mortgage decree against the father alone passes not only tho father’s, but Ihs 
sons’ interest in the mortgaged property as decided in the two Privy Ctmnoii eases, tlio 
Court could also pass a mortgage decree against the sons, and that the Full Bench rulifUC 
ill Luchmun Doss's case (d) was no longer good law since tho Privy Council ducWorw, 
In both these cases the Court overlooked the fact that there was a distinetjon hetwmm 
the position of the son where the mortgage created by tho father was sr/ught to fe en.J;fi>d 
against his interest in the property, and his position after the sale in axmnttion of the rlnfitm 
against the father ; that distinction, whether it was logical or not, has b/ng sitire hfipti 
recognised. In two cases (dl), again it was held by that Court that the aforecftid Full 
Bench ruling was superseded by s. 85 of the Transfer of Projierty Act, 1882, now O, Isf, 
r. 1, of the Code of Civil Procedure, 1908. All these decisions were subs^irpicntly ovorrttlc^f 
by a I’uU Bench of the same High Court in Brijnandan v. Isidya Praewl («), and if. voi« 
held that there was nothing either in the above mentioned decisions of tlio Privy Ovtifuul 
or in the provisions of s. 85 of the Transfer nf Property Act to justify the view tfet » 
mortgage created by a father was operative as such against the sruis, and that the 
decision in the Full Bench ease that no mortgage decree can lie passed against the 
sons, but only a money decree, was still good law. It was also held that tiie cbat'ga 
could not be enforceable against the sons, article 132 of the Schedulo P/ the Indian 
Limitation Act, 1908, had no application and that article 120 governwl t)i» nstso. 

It has been stated above that though according to tho IMitak.ahara law ae adminis- 
tered in Bengal, the father cannot alienate his own undivided iriP-rest in t,h" eopat^Wiary 
property without the consent of his sons, the Calcutta High Court h.is heb) iho 
mortgagee is entitled to a mortgage decree agaiast the father, 'i’he Ifuding t.-vse-. oft tfw( 
subject IS Zitchmun Dasa v. Giridhnr If) decided hy a Full Beru h m 1 8^/, '/fi6 of 
the case are stated in Khalilul Rahman v. Oohind Rersh/id IW.tli) 20 t,'a(, B28, 
and the decree passed by the High Court after tho Full Bcn-'.h had returned the: aaswers 
to the questions submitted to them is set forth on p. StH of the fiffj'Jtt, lo 
Doss's case, the lower Court had passed a mortgage decree im tho sale oi ifio fnitif F^ imacirw. 
but it whclly dismissed the moitgagee’s suit against th« rents, hi to tfr/iitg tfi* 
purported to foliew an earlier ruling of tho same High Court Tl!.". qetos'lti'* b«fwr- 
the Full Eencii was as to the extent of the liability of tho sorrs In rmisr.t of tho 
debt, 'Xhere was no question as to wbethor a roortgago fUetftet fc.ui-d M 
the/afAer. On the qurostion before them the pull Iternr;h held that no 
could be passed against the sons, but tbo Hons Is-irtg umlor a pious ohh^.eti'.ri v. 5«y ilh'i’ 
father's debt, their share was liable to he aolfl if the net ealo prf.eccdc of fdic;. e 

interest were not .suE,oient to gati-fy tho rnorlinj Lory's elajm to frdf. 

297. Where purchase money applied in part wily in 
of antecedent debt.— If sornetirrieK bajipenK tbat jwirt jsiffvilij' 
propeitr is sold hy the father of a j<;jnt fot pay 

ment of an anteceilerit.deht, but the wlfole pm-c if. 

(ri ( L5.yEi ESCaJ.M- I?, 1 A. 1 , rtWri, riif TVi, 

Out 4 ii l.tS 717, 7zi, 'if, li l.A W, ■' W) , liKminal . r Jsrt' ot'r f w"' '' 

f.i'» ) S M iJS, I 1 I, -17 Itut'.t i'l i, * V V'.ii ' 

tr„ /Si t'fki. )Mi \ i f'. ,r« 

Sitpfsm tr ffUfZi 17 1 f't i‘*' t . i-*r,i I 

C. W. E-'# I Zl'ijV'f:' 

Stsi JmmM ’S'. U AU | fji , , , ,, 

454 „ 'SipQtfK I <jri y 1’ f-'W' 


S«, 

m^w 



382 


HINDU LAW. 


Ss. 

297,298 


proved to have been applied in payment of such debt, and 
the sale is challenged by the sons on that ground. In such a 
case, if the sale was necessary to discharge the debt, and the 
purchaser pays a fair price for the property sold, and acts in 
good faith and after due inquiry as to the necessity for the 
sale, the mere fact that part of the price is not proved to have 
been applied in payment of the debt does not invahdate the 
sale, the reason being that the purchaser is hot bound to see to 
the application of the price. If the above conditions are satis- 
fied, the sale must be upheld unconditionally, whether the 
part not proved to have been applied in payment of the debt 
is considerable or small {h). See ss. 189, 245. 

The above principles have been laid down by the Judicial Committee in cases of 
sales by the manager of joint family property for legal necessity, but the same principles 
apply to cases of sales by the father for the payment of an antecedent debt. 

In an earlier Privy Council case, where one property was sold for Rs. 2,000, and 
Rs. 338 was not proved to have been applied in payment of the father’s debts, and another 
property was subsequently sold for Rs. 2,000 and Rs. 1,847 was not proved to have been 
applied in payment of the debts, their Lordships set aside both the sales conditionally 
on payment by the spns, who were the plaintiff’s in the suit, to the purchaser of the' sums 
actually applied in payment of the debts (»). It is conceived that if such a case arose 
again, both the sales would be upheld if the conditions stated in the section were satisfi^. 
See notes to ss. 189 and 24.1. 


298. Immoral (avyavaharika) debt. — Sons, grandsons and 
great-grandsons are bound to pay all debts contracted 
by the father, grandfather or great-grandfather except the 
following debts {j) ; — 


<A) 


(1) debts for spirituous liquors ; 

(2) debts due for losses at play ; ' - . . 

(3) debts due for promises made without consideration ; 

A promissory note for a time-barred debt is not a promise without 
consideration (it), 

(4) jdebts contracted under the influence of lust or 

wrath ; 

(5) debts for being surety for the appearance or for 
the honesty of another (?) 




Kruhna Das v. Nathu liam (1927) b4 I. A. 
79, 49 All. U9, 100 I.C. 130, (’27) A.PC, 
37 [case of legal necessity] ; Niarnal Kai 
V. Din Dayal (1927) 54 I. A. 211, 8 Lah, 
597, 101 I.C. 373, ('27) A.PC. 121 ; 
Muhit Vllak v. Damodar Prasad (1926) 
53 I.A. 204, 48 All. 518, 98 I.C. 1031, 
(’20) A.PC. 105 [case of legal netessityl ; 
Gokha Ram v. iSham Lai (1922) 3 Lah. 
426, 77 I.C. 174, (’23) A.L. 268 [antecedent 
debt] ; Jiuta Mai v, Gopal Hingh (1930) 
11 Lah. 164, 122 I.C. 480, ('30) A. L. 1040 
The decision in »S'ttnmHfcft v. JagamaUi, 
(1924) 46 All. 531, 83 I.C. 83, (’24) A. A. 


708 [antecedeBt* debt], is no longer good 
law; see tUe judgment in 54 I.A. 79, 
refferred to above. 

(i) JJfljiuiari Lai v. Mahe^h (1918) 45 I. A. 284, 

41 All. 03, 49 I.C. 540, (’17) A.PC. 118. 

(j) KlMhlul V. Gobind (1893) 20 Cal. 328, 336, 

337. 

(A) Gajadhar v. Jagannath (1924) 46 All. 775, 
787, 80'I.C. 684, (’24) A.A. 551 [F.B.]. 

(Z) Tukaram v. Gangaram (1899) 23 Bom. 454, 
456, 458. Sec also Mahabir v. Siri 
l^arayan (1918) 3 Pat. L. J. 390, 46 I.C. 
27, (’18) A. P. 345. 



DEBTS. 


383 


(6) unpaid fines (to) ; 

(7) unpaid tolls ; and 

(8) any debt which is avyavaJiarika which is rendered 
by Colebrooke as equivalent to a debt for a cause 
“ repugnant to good morals.” 

Surety. — According to Vrihaspati, there are four different claaseg of sureties, namely, 
sureties (1) for appearance, (2) for honesty, (3) for payment of money lent, and (4) for deli- 
very of goods. In respect of the first two kinds, the sons are not liable unless the father 
received consideration for accepting the suretyship. In respect of the last two kinds 
the sons aro liable, but the grandsons are not liable unless the grandfather rccei ved consi- 
deration for accepting the suretyship. It has thus been held that when the father is 
surety for repayment of a loan^ the son is clearly liable (n) but the grandson is not unless 
consideration was received by the grandfather for accepting the suretyship (o). A guaran- 
tee given by the father foriLayment of rent by a tenant is a guarantee for payment of a 
debt (^), and so is a guarafife -for payment of money that may bo decreed against 
a defendant in a suit {q). A debt incurred by a father as a surety for payment of 
money is binding on the son as a mere money debt but a hypothecation of the 
family property for such a debt is not binding on the property (r). But a surety bond 
hypotbecatJng joint property by which the Sather guarantees payment of ioss that may he 
caused to the estate of a minor by misappropriation or waste by a guardian is a bond for 
the honesty of another [see cl, (5) above], and is not binding on the sons (s) ; unless the 
security bond is executed for a debt of the father (i) ; if under such a bond the property 
is sold, the son is entitled to recover his share therein {u). It has been held by the Patna 
High Court that a debt incurred by a father for standing surety against embezzlement 
by a tahsildar is not binding on the sons (y) [see cl. (5) above]. But it has been held by 
the same High Court that the sons are liable for money borrowed by their father to enable 
his wife’s cousin to refund money which he had misappropriated or could not account 
for {w). 

Debt for a cause repugnant to good morals . — ^Tho fundamental rule is that the sons 
are not liable for debts incurred by a father which are avyavaharika. Colebrooke translates 
it as “ debts for a cause repugnant to good morals,” Aparaka explains it as not righteous 
or proper, and Balambhatti as not for the benefit of the family (a;). 

Where money was borrowed by the father for the purpose of defraying the expenses 
of the marriage of his concubine’s grand daughter, it is avj^avaharika oven if the 
concubine was in his continuous and exclusive keeping (y). 


(jn) v. llureeram (l-SJ-i) 1 Bor. S4, 90. 

(n) Tukaram v. (?tt»jfaran»{1899) 23 Bom. 4r>4 ; 

Sitaramagvo, V. V enkijiAramanna (1888) 
11 Mad. 373; Cheitikulftfn v. Cketi}culav\ 
(1905) 28 Mad, 377 i Thangathammal v. 
Arunachalam (1918) 41 Mad. 1071, 48 I.C. 
76, (*19) A.M. 831 ; liasiklal v. Singhesh- 
war (1912) 39 Cal. 813, 14 I.C. 847; 
JOwarka Das v. Kisfian Das (1033) 5.5 All. 
675, 147 I.C. 1048, (’33) A.A. 587. 

(o) Narayan v. Venkatacharya (1904) 28 Bom. 

408. 

ip) Maharaja of Benares -v. Ramkumar (1904) 
26 All. 611. 

(g) Mata Din v, liam Lakhan (1930) 52 All. 
153, 120 I.C. 555, (’30) A.A. 87 ; Matak 
Ghana v. Uiralal (1936) 11 Luck. 449, 
157 I.C. 945, (’35) A.O. 510. 

(r) Thakar Salrohan Singh v. Unvi Dutt (1936) 


11 Lurk. 40i, 157 I.C. 653, (’35) A.O. 
455 , Malak Chand v. Hiralal (1936) 
11 Luck. 449, 157 I.C. 945, (’35) A.O. 510. 
(«) KoUapalli Lakshminarayana v. KanupaHi 
Uanuvuintha Rao (1935) 58 Mad. 375, 154 

I. C, 431, (’35) A.M. 144. 

(0 Kesarchandy. (1945) 52 1.A. 165 ; 

(1945) 2 M.L.J. 160. 

(u) Choudhuri v. Rayagriha (1931) 10 Pat. 94, 
138 I.C. 414. ('32) A.P. 162. 

(») Salya Charan v. Satpir (1919) 4 Pat. L J. 

309, 51 I, C. 791, (’19) A.P. 422. 

(uj) Benares Bank, Ltd. v. Jagdip (1021) 6 Pat. L. 

J. 158, 62 I C. 465, (’21) A.P. 9. 

(z) Sec Bai Mani v. Ustifali (1931) 33 Bom. L. 

31, 130, 133, 136 I.C. 173, (’31) A.B. 229. 
(w) Lakshmana^wami v. Raghaoachantlu (1943) 
Mad. 717, 210 I.C. 08, (’43) A.M. 292. 


S.298 



384 


HINDU LAW. 


S.298 


A debt may arise out of a cmtraci as where money is borrowed by the father, or 
it may arise out of an act which amounts to a crimiiial offence^ e.g.y theft, or it may arise 
out of a tori or civil wrong. 

Money borrowed by a father for payment to a Hindu woman as a bribe to induce her 
to take one of his sons in adoption is an avyavdharika debt, and the sons are not liable 
for it ( 2 ). So is money borrowed to pay a fine inflicted for a criminal offence (a). The 
High Court of Madras has held that money borrowed to pay the cost of a suit in forma 
pauperis brought by the father knowing it to bo false is an avyavaharika debt (6). The 
Calcutta High Court has held that money borrowed by the father for litigation to set up 
an adoption is not an avyavaharika debt and that the sons are liable for it (c). The 
same High Court has also held that the sons are liable to pay the costs of a suit decreed 
against the father, though the litigation was imprudent [d). 

Where money is obtained hy a father by committing a criminal offence, e.g.y theft 
and a decree is passed against him for the money so obtained by him, the sons are not 
liable for the decretal amount (c). The same rule applies in respect of money taken by a 
father and misappropriated under circumstances which constitute the taking itself a 
criminal offence (/), e.g., misappropriation by the father as a guardian of money belonging 
to the minor {g), or a criminal broach of trust (h). No decree can be passed against the 
sons of a stake-holder of a chit fund in respect of the latter's liability to a subscriber as 
the debt is illegal (i). [Sec also Seska Ayyar v. Krishna Ayyar (1936) 59 Mad. 562, 
162 I.C. 68, (’36) A.M. 225, where it was held by a Full Bench that such a fund was a 
lottery and by three Judges out of five that its promoters were guilty of oflencea under 
both parts of section 294A of the Indian Penal Code.] Where the father’s debt was, at 
its inception, a just and true debt, the subsequent dishonest conduct of the father cannot 
affect its nature. Thus, when the father withield a promissory note allotted in a partition 
decree to the opposite party which he was directed to deposit in Court his conduct in first- 
filing a forged note and then filing the real note after it was barred cannot save the son’s 
liabUity under the decree passed against the father for the loss ( j) But where a father 
is under a civil liability to account for money received by him, e.g.y as an adminis- 
trator of the estate of a deceased person, or as a trustee, or as an agent or manager, and he 
fails to account, and a decree is passed against him for money not accounted for by him, 
the sons are liable for the amount of the decree though the father may have retained the 
money dishonestly, provided the retention itself does not amount to a criminal oSence, 
that is, the offence of criminal breach of trust or criminal misappropriation (fc). Where 
the receipt of the money was lawful at the time of the receipt, oven the subsequent 
commission of an offence by the father does not save the sons’ liability (?). The burden is 
on the sons to show that the retention itself amounted to a criminal offence (m). 

A Hindu father erects a dam which obstructs the passage of water to the property 
of his neighbour. The Court finds that the father had no right in law to erect the dam 
and a decree is passed against the father for damages. Ai*e the sons liable for the amount 
of the decree ? It has been held by the High Court of Bombay in Durbar v. Khachar {n) 


(z) 6’ifarafn v. Rarihar (1911) 35 Bora. 109, 
8 I.C. 025. 

(a) Garuda Sanyasayyan v. Nerella Murthenna 
(1918) 3.5 Mad. L.J. 661, 48 I.C. 740, ('10) 
A.M, 943. 

(t) Ramaiengar v, Secretary of State (1910) 
20 Mad. L.J. 89, 41 I.C. 105. 

(c) Khalilul V. Gobind (1893) 20 Cal. 328. 

(d) Paryag v. Kasi ^909) 14 C.W.N. 659, 

6 I.C. 2.58. 

(e) Pareman Doss v, Bhattv, (1897) 24 Cal. 672. 
(/) MahaHr Praead v. Basdeo Singh (1884) 0 

All. 234 ; McDowell <b Co. v. Bagaia 
(1904) 27 Mad. 71 ; Jagannath v. Jugal 
Kvshore (1926) 48 All. 9, 89 I.C. 492, (’26) 
A.A. 89 : (1931) 33 Bom. L.R. 130, 130 
I.C. 173, ('31) A.B. 229, supra. 

(g) (1931) 33 Bom. L.R. 130, 136 I.C. 173, 

('31) A.B. 229. mpra. 

ih) Srimathi Widyavanti v, Jai Dayal (1932) 13 
Lah, 366, 140 I.C. 220, (’32) A.L. 541. 

(i) Muniyandia v. Mulhusami (1939) I^d. 70 

(j) Remraj alias Balu Pai <&: Ors. v. Khemchand 

t£r Ors. (1943) All. 727, 209 I.C. 344, 70 
I.A. 171, ('43) A.PC. 142. 


{k) Nalasayan v. P(mnt«ffmt(i893) 16 Mad. 199, 
104 ; KanevMT v. Krishna (1008) 31 Mad. 
161 [manager] ; Gurwnatham v, Raghavalu 
(1908) 31 Mad. 472 [administrator] ; FfTi- 
katacharyulu v. Mohana (1921) 44 Mad. 
214, 61 I.C. 530, (’21) A.M. 407 [agent] ; 
Gursam Das v. Mohan Lai (1923) 4 Lah. 
93, 76 I.C. 907, ('23) A.L. 399 [manager] ; 
Uanmant v. Ganesh (1919) 43 Bom. 612, 
51 I.C. 612, (’18) A.B, 13 [trustee] ; 
2'oshanpal v. District Judge of Agra (1929) 
51 All. 386, 112 I.C. 748, (’28) A.A. 582 
[Secretary of a School Committed. See 
also Jaxkumar v. Oatirx Nath U906) 28 
All. 718, 720; Mohani Gadadhar v. 

Ghana Shyam Das (1918) 3 Pat. L.J. 533, 
47 I.C. 212, (’18) A.P. 391. 

(Z) Alapati Anandrao & Ors. v. The President, 
Co-operatve Credit Society, Pedatadipallx, 
Ors. (1941) Mad. 27, 191 I.C. 755, (*40> 
A.M. 828. 

(jTi) Toshanpal Sxngh v. Dii>iTict Judge of Agra 
(1934) 56 All. .548, 61 I.A. 350, 151 I.C. 33, 
(’34) A.PC. 238. 

(n) (1908) 32 Bom. 348. 



DEBTS. 


3S5 


that they are not liable, the reason given being that such a debt is avyavaharika, that 
is, a debt which the father ought not, " as a decent and respectable man,” to have incurred. 
This interpretation of the word avyavaharika has not been accepted by the High Court 
of Calcutta. According to that Court, the sons are liable for a decree against the father 
or damages on account of injury caused to crops by obstruction of a channel (o). They 
are also liable for a decree against the father for mesne profits (p). The view taken in 
Durbar's case has also been disapproved by the High Court of Madras (q). The High 
Court of Allahabad has also dissented from that view, and held that the sons are liable 
for money borrowed b}' the father to defend a suit for defamation (r), or to defend himself 
against charges of forgery and fabrication (a) ; also that they are liable for a decree 
against the father for damages for wrongfully cutting doivn trees {(), The authority of 
the decision in Durbar's case was treated as doubtful in a later Bombay case where it 
was held that a debt contracted by a father in a trade carried on by him in contra- 
vention of the Government Servants’ Conduct Buies was not avyavaharika, the liability 
in such a case being merely cirn’l as di.stinguished from criminal (u). 

The Patna High Court has held that the sons are liable for money borrow'ed by the 
father to meet the expenses of defending himself against a charge under the Cattle Tres- 
pass Act, 1871 (r), but they are not liable for a dedree passed against the father for damages 
tor malicious prosecution (w), 

Where money was borrowed by the father for assisting in the prosecution of a person 
accused of the murder of a member of the family, it was held that the debt though not 
one for a legal necessity w'as not illegal or immoral (x). 

Where the father has taken a lease for a term but continued in possession after the 
expiry of the term, the sons are liable for the mesne profits as the possession is not neces- 
sarily immoral (y). 

Commercial debts . — The text of Gautama, chapter XII, s. II, to the effect that the 
sons are not liable for their father’s commercial debts has long become obsolete, and 
sons are now liable for simple money debts incurred by the father in the course of business 
even though started by the father himself (c) [s. 240], If a money decree is passed 
against the father alone for such debts, the sons cannot resist in execution (re). Such 
debts though speculative are good as antecedent debts to support a further mortgage (6) 
as they are not repugnant to good morals (c). 

299. Time-barred debt. — (i) The Hindu law does not re- 
cognise any rule of limitation for the recovery of debts. 
A Hindu, therefore, is bound according to that law to pay 


Sahu v. Badri Teh (IU38) All. 330, 
175 1 C 607, (’38) A.A. 263 

(x) Marudappan v. .Xiraikulatfian (1037) Mad, 
1943, 169 T.C. 292, (’37) A. M. 434. 

(y) Paahupat Pratap Singh v. Lalat Bahadur 
•SmyA (1945) All 5. 

( 2 ) Arhutaratnayya v. Ratnajee (1926) 40 Mad. 
211, 92 I.C. 977, ('26) A.M. 323 [hardware 
tradel ; Annahhai v. Shnappa (1928) 52 
Bom. 376, 110 I.C. 269, (’28) A.B. 232 ; 
Venkateswara Bao v. Aminayya (’39) 
A.M. 561. 

(rt) Chotkao Singh v. Basan (1930) 5 Luck, 184, 
119 I.C, 458, (’29) A.O. 458 ; Pirthi 
Sinffh V. Mam Chand (1935) 16 Lah. 
1077, 156 I.C, 539. (*35) A.L. 761. 

(5) Khemrhand v. A'artn Da^ (1925) 6 Lah. 
493, 498, 80 I.C, 1022, ('26) A.L. 41 : 
Venkatasami v. Palaniappa (1929) 52 
Mad. 227, 117 I.C. 716, ('20) A.M. 153. 

(c) Chotkao Sinyh v. Hasan (1930) 5 Lurk. 184, 
119 I.C 458, {'29) A.O. 458. 

13 


lo) Chhakann v. Uanga (1912) 39 Cal. 862. 12 
I.C 609, See Kirpal Singh v. Baluant 
Singh (1913) 40 Cal. 288, 17 7 C 666 
[P.C.] whicli turned upon a special cus- 
tom of aunculturist* in the Punjab. 

(p) Peary Lai v. Chandxcharan (1906) 11 C. IV. 
N 103. 

(j) V cnugopala v. Ramanadhan (1914) 37 Mad. 
4.58, 14 I.C. 705, (’14) A.M. 6.54 ffO'st- of 
liticatioiij. 

(r) Sumer Singh v. Liladhar (1911) 33 All. 472, 
19 I.C. 624. 

(«) See Beni Ham v. Mart Singh (1912) 34 All. 
4, 11 I. C. 663. 

{t) Chundrika v. Narain (1924) 46 All 617, 79 
I.C. 1036, ('24) A.A. 745. 

(ii) /innilTw/iana V. Varavtt«(1910) 40 Bom 126, 
31 I.C. 301, (’15) A.B. 280. 

(y) Banumai v. Sonadhari (1919) 4 Fat, L.J. 

053. 62 I.C. 734, (’20) A.P. 708 
(u) Sunder Lai v, Raghunandan (1924) 3 Pat. 
250, 83 I. C. 413, (’24) A.P. 465, Raghu- 


Ss. 

298, 299 



386 


HINDU LAW. 


Ss. 

299,300 


a debt owing by him, though it is barred by the statute of 
limitations ; if he dies without paying the debt, his sons are 
under a moral and religious obhgation to discharge the debt. 
But a Hindu is not bound since the enactment of the Indian 
Limitation Act, 1908, and the Acts which preceded it, to 
pay a time-barred debt, and it has accordingly been held 
that if the debt was barred against the father, the sons are 
no longer under a pious obligation to pay such debt (d). But 
a Hindu father may, like any other debtor, pass a promissory 
note for a time-barred debt. Such a note constitutes a binding 
contract having regard to the provisions of s. 25 (3) of the Indian 
Contract Act, 1872 and it may be enforced against him, and 
after his death, against the sons. The sons, however, are 
liable only to the extent of the estate, whether ancestral or 
self-acquired, which has come to their hands on the father’s 
death (e). The liabihty in such a case does not rest upon any 
obligation moral or religious, but on the general principle 
of the Anglo-Indian law. Even if the sons themselves execute 
a prorhissory note for a time-barred debt of their father after 
the father’s death, the note is available only against the 
ancestral or self-acquired property, which has come to their 
hands. There is nothing in sec. 25 (3) of the Contract Act to 
render them personally liable on such a note (/). 

(2) A time-barred debt, under the Hindu law, is not 
avyavaJiarika, that is to say, it is not immoral. It has accord- 
ingly been held that when the father alienates joint family 
property in consideration of a debt that is barred by the law 
ot limitation, the ahenation is binding on the sons {g). 

300, Debt contracted by father during minority or other 
disability. — A promissory note passed by the father for a 
debt contracted by him during his minority or while he was 
a ward of the Court of Wards is void {h), and the son is under 
no pious obhgation to pay it. The pious obligation, however, 
arises if the note is renewed by the father after attaining 
majority {i). 


(d) fiulfraimnia v. Copala (1910) 33 Mad. 308, 
7 I.C. 898 ; Oajadhar v. Jagannath (1924) 
48 AH. 775, 782. 80 I.C. 084, ('24) A.A, 
551 [F.H.l; Achutanand v. Suragnarain 
(1926) 5 Pat. 748, 753-754, 95 I.C. 991, 
(*26) A.P. 427. 

(c) N aragunu^ami v. Samxdas (1883) 6 Mad. 
293 ; Ram Kishan v. Chhedi Rax (1922) 
44 All. 028. 68 I.C. 235, (*22) A.A. 402. 

(/) Aso Horn v. KaramSxmjh (1929) 51 AU, 983, 
119 I. C. 109, ('29) A.A. 686. 


(?) (^ajadhar v, Juffunnuth (1024) 46 AH. 775, 
80 I. C. 684 ('24) A.A 551 [F.B.l ; 
Jaqdambika v. Kali (1930) 9 Pat. 843, 
129 I.C. 130, (’31) A.P. 40; Parmanand 
Misir V. Oar Prasad \\ Luck. 893, 

157 I.C. 567, (’35) A.O. 500. 

(A) Baldeo v. Bind^^hri (1922) 44 All. 388, 06 
I.C. 128, (’22) A.A. 215. 

(i) Horn Rallan v. Basant Rai (1921) 2 Lah. 
263, 64 I.C. 121, (’21) A.L. 205. 



DEBTS. 


387 


301. Summary of the Chapter. — (i) The separate property 
of a Hindu is liable for the payment of his debts in his lifetime 
as well as after his death. 

(2) The undivided interest of a coparcener in coparcenary- 
property is always liable for the payment of his debts in his 
lifetime. 

(5) Where a coparcenary consists of collaterals, the 
undivided coparcenary interest of a coparcener is not liable 
for the payment of his debts after his death unless such interest 
was attached in his lifetime. But where a coparcenary consists 
of an ancestor and his sons, grandsons or great-grandsons, and 
the ancestor dies leaving debts, the whole coparcenary property 
including the undivided interest of the ancestor in such property 
is liable for his debts even after his death, provided the debts 
were not contracted for an immoral or unlaudul purpose. 

(4) Sons, grandsons and great-grandsons are liable to 
pay the debts of their ancestor if they have not been incurred 
for an immoral or unlawful purpose. Their liability, how- 
ever, is confined to their interest in the coparcenary property ; 
it is not a personal liability so that a creditor of the ancestor 
cannot proceed against the person or against the separate 
property of the sons, grandsons or great-grandsons. 

(o) As sons, grandsons and great-grandsons are liable 
to pay the lawful debts of their ancestor to the extent of their 
interest in the coparcenary property,, a creditor of the ancestor 
is entitled to attach and sell not only the interest of the ancestor, 
but also the interest of the sons, grandsons and great-grandsons 
in the joint family property in execution of a decree obtained 
by him against the ancestor alone. 

{6) As sons, grandsons and great-grandsons are Liable to 
pay the lawful debts of their ancestor tq the extent of their 
interest in the coparcenary property, the ancestor can sell 
or mortgage not only his own interest, but the interest of 
the sons, grandsons, and great-grandsons in the joint family 
property, to pay an antecedent d^t of his own. 


S.301 



388 


CHAPTER XV 

DEBTS— DAYABHAGA LAW. 

Preliminary note. — As under the Mitakshara law, so under the Dayabhaga law 
a debt may be contracted by a Hindu for purposes of the joint family or for his own 
private purposes. Debts contracted for joint family purposes have been dealt with 
in ss. 234-, 240 and 244. The rules laid down in those sections apply to cases both under 
the Mitakshara and the Dayabhaga law. The present chapter deals with the Dayabhaga 
law of debts contracted by a Hindu for his own private purposes. The Dayabhaga 
law of debts is very simple, for no question can arise under that law" as to the special 
liabilit}’ of son* and grandsons as it doe^ under the Mitakshara law. The reason that 
under the Da^’abhaga law sons do not acquire by birth any interest in ancestral projierty 
as they do under the Mitakshara law [ss. 273-274]. And, further, each coparcener 
under the Dayabhaga law takes a d fined share in the coparcenary property w’hich 
he can deal with at his pleasure and which on his death passes to his heirs and not to the 
surviving coparceners [ss. 270-2S2J. With these preliminary remarks we proceed to state 
the rules of the Dayabhaga law’ of debts. 

S. 302 302. Debts— Bengal School. — (J) As under the Mitakshara 

law, so under the Dayabhaga law, the separate property of 
a Hindu is liable for the payment of his debts in his lifetime 
as well as after his death. 

(2) As each coparcener under the Dayabhaga law takes 
a defined interest in the coparcenary property, which on his 
death passes not by survivorship to his coparceners, but to 
his heirs by succession such interest is liable for the payment 
of his debts not only in his lifetime but also after bis death, 
as assets in the hands of his heirs. 

(3) Since sons, grandsons and great-grandsons do not 
under the Dayabhaga law acquire any interest by birth in 
ancestral property, the father can sell or mortgage the whole 
of the ancestral property in his hands for the payment of his 
debts, whatever may be the character of the debts. 

On the death of a Hindu governed by the Dayabhaga law’, his separate property 
as well as his undivided interest in coparcenarj' property passes to his heirs and they 
become assets of the deceased in their hands. Therefore, if he dies leaving debts, the 
heirs are bound to pay the debts not only out of the separate property left by the deceased 
but also out of his undivided intere.«t in the coparcenary property. The heirs, however 
are not personally liable for the debts of the deceased, not even if they be the sons, 
grandsons or great-grandsons of the deceased (j). Compare with this sec. 288 above. 


(j) Abdul Itahm'in v Gaiendhralal (lUaS) 1 Lfil 132 



389 


CHAPTP^R XVI. 

PARTITION AND RE-UNION, 

MITAKSHARA LAW. 

1. W hat •property is diiisible on partition — ^secs. 303-30<>. 

II. Persons entitled (o ashare on paitition — sees. 306-318 

III. Restraint against partition — secs. 319-320. 

IV. Allotment of shares — soc. 321. 

F.— Partition how effected — secs. 322-335. 

Re-opening oj partition — secs. 336-339. 

VII. Effect of partition — secs. 340-341. 

VIII. Re-imion — secs. 342-344. 

IX. Partition created by so-called tail — see. 345. 

PEOPERTY LIABLE TO PARTITION. 

303. Subject of Partition. — The only property that can S. 303 
be di\uded on a partition is coparcenary property [s. 221], 

Separate property cannot be the subject of partition [s. 222], 
nor can property whicli by custom descends to one member 
of the family to the exclusion of other members, e.g., a Raj or 
principality ijc). 

Ancestral property. — It was thought at one time that a son could not enforce a 
partition of ancestral moveables against his father. But it is now established that a son 
is entitled to a partition of moveable (/) as well as oi immoveable property against his 
father (m). 

Property indivisible from its nature. — Wliero property is in its nature indivisible as, for 
instance, in the case of animals, furniture, etc., it may be sold and its value distributed; 
or it may be valued and retained by one coparcener exclusively and the amount credited 
to his share. In the case of a well, it may be enjoyed by the coparceners in turns or 
jointly («). Where a strip of land is reserved as a common passage by a decree in a suit 
for partition for the use of the coparceners, none of them is entitled to a partition of 
that strip (o). AVhere a stock broker's card is issued by the St jck Brokers’ Association 
in the name of a coparcener he must account for its value at the time of the partition (p). 

Idols and places of worship. — Family idols and places of worship are not divisible 
iManu, ch. ix, verse 219]. Tliey may be held by the members by turns, or the Court 
may direct possession to be given to the senior member with liberty to the other members 
to have access to them for the purpose of worship ({). A thakurbarki is not divisible (r). 

The High Court of Calcutta has recently Iield that in the absence of any dedication of a 

(L‘) Ratiutlakshmi v. Sieananthu 14 >t. I. I.C. 521. 

A. 570 : Chintamim v. A'oielutho (1870) | (o) Shantaram v. iramin (1923) 47 Bom. 889, 

1 Cal. 153, 2 I, .4, 203; Adrishnppa \. ' 03 I.C, 082, (’23) A. B. 85. 

Gurushidappa (1880) 4 Bom. 494, 7 I. A. ()i) Chamitaklai Ctiiminlat v. Soda-jar Amubhai 

182; Kachi Kalii/ana v. Karh\ I'Kia I (1945) Bom. 019. 

(lUo't) 23 Mad. 508, 32 I. .4. 201 ; Bodhrtto iq) Dnnoidrdns v. Vttanwam (1893) 17 Bom 
V. iVarsinj /too (1856) 0 M. I, A. 420. 27L , Miltit Ktinth v. yefr»n;im (1.S75) 

(() Jugmohandm v. Manqaldas (1880) 10 Bom, I 14 Beats. L. R. 166; Rramitha A'ath v. 

528, 678 ; Cassumbhoy v, Ahmedbhou \ Pradi/um ia Knm'ir (1925) 52 I. A. 245, 

(1888) 12 Bom. 280. I 260, 52 Cal. 809, 8’26, 87 I.C. 305, (’25) A. 

(?n) Suraj Bunst Boer V. Sheo Persad (1830) 5 | PC. 139, 

Col. 148, 105, 6 I. A. 88, 106. (r) .Vinkiitmohaa v. tSaha (1630) 57 Cal. 570. 

(n) Govmd v, Trimbak (1012) 30 Bom. 275, 6 1 124 I.C, 327, (’30) A. C. 173. 



390 


HINDU LAW. 


Ss. 

303,304 


building for the worship of the family idol, the building should not bo excluded from 
partition merely because it is used for the worship of the idol. The Court may, however, 
in such a case give an option to a coparcener or coparceners willing to maintain the 
building as a place of worship to buy it at a valuation (s). 

Right of way . — A right of way will be presumed to have remained joint, if there is 
no evidence that it was allotted to a particular member at the time of partition ((). 

Share allotted on paritiion.-— Where a coparcener, who is joint with his male issue 
separates from his father, brothers, or other coparceners, the property allotted to him at 
the partition is separate property as regards the divided members, but ancestral as regards 
his male issue [s. 223, sub-s. (4)]. Such property is, therefore, divisible as between 
him and his male issue, but the members who have already separated are not entitled to 
share in it. If he dies without leaving a male issue, it will descend to his heirs («) . 

I Separate properly . — Coparcenary property alone is liable to partition. Separate 
property is not liablo to partition at all ; it belongs absolutely to the owner thereof. As 
to what is coparcenary property, see secs. 223, 227 and 228 above. As to what is separate 
property, see ss. 230-232 above. 

Mode of allotment . — The principle of partition is that if property can be partitioned 
without destroying the intrinsic value of the whole property or of the shares, such parti- 
tion ought to be made. If, on the contrary, no partition can be made without destroying 
the intrinsic value, then a money compensation should be given instead of the share 
which would fall to a coparcener by partition Iv). 

304. Property available for partition. — (i) In order to 
determine what property is available for partition, provision 
must first be made for joint family debts which are payable 
out of the joint family property, personal debts of the father 
not tainted with immorality {w), maintenance of dependent 
female members and of disqualified heirs, and for the marriage 
expenses of unmarried daughters [x). Where a partition takes 
place between the sons, provision must also be made for the 
funeral ceremonies of the widow [y) and mother of the last 
male-holder (z). After this is done, an account must be taken 
of the joint family property in the hands of the manager and 
other members of the family, according to the rule laid down 
in the next following section. 

(2) Marriage expenses, etc., after a suit for partition . — 
As to the marriage expenses of male members of the family 
it has been held by the Judicial Committee (a), reversing a 


(«) Sackindra v. Eemchandra (1931) 35 C.W.N. 
151, 132 I.C. 688, ('31) A.C. 573; Raj 
Coomari v. Gopal (1878) 3 Cal. 514. 

(() Natkxibhai v. Bai Uansgavri (1912) 36 Bom. 
379, 15 I.C.818. 

(u) Eatama Nalchiar v, Tfie Rajah oj Shivagunga 
(1863) 9 M.I.A. 543; Periasatniv. Peria- 
8amiil878) 1 Mad. 812, 51. A. 61, 

(u) Asfianullah v. Kali (1884) 10 Cal. 675. 

(u3) Venkureddi v. Venku Reddi (1927) 60 Mad. 

535, 100 I.C. 1018, (’27) A.M. 471. 

(z) Strange’s Hindu Law, > 0 ). Vi, p. 313; Mux* 
sammat Bholi Bai v. Duiarka Das (1924) 
5 Lah. 375, 84 I.C. 168, (’25) A.L. 32; 


Vaikumtam V. Kallapiran (1900) 23 Mad, 

512. 

(^) See Vaidyanath v. Aiyasamy (1009) 32 Mad. 
191, 200, 1 I.C. 408. 

(z) Nand Itani v. Krishna Sahai (1935) 57 All. 

997 , 156 I.C. 23, (’35) A.A. 698. 

(a) Ratnalinga v. Narayana (1922) 49 I.A. 168, 
45 Mad. 489, 68 I.C. 451, (’22) A.PC. 201 ; 
jilusBammat Bholi Bai v. Dwarka Das 
(1924) 5 Lab. 375, 84 I.C. 168, (’26) A.L. 
32 ; V enkatarayudu v. Sivaramakrishnayya 
(1935) 68 Mad. 126, 153 I.C. 368, (’34) 
A.M. 676. 



PROPERTY LIABLE TO PARTITION. 


391 


decision of the Madras High Court (fe), that since the institution 
of a suit for partition by a member of a joint family effects 
a severance of the joint status of the family, a male member 
of the family who is then unmarried is not entitled to have a 
provision made on partition for his marriage expenses, although 
he marries before the decree in the suit is made. 

The case, however, of an unmarried daughter stands on 
a different footing. Her right to maintenance and marriage 
expenses out of the joint family property is in lieu of a share 
on partition ; provision should accordingly be made for her 
marriage expenses in the decree. Thus if A has a son 8 and a 
daughter D by one wife, and a son S2 and a daughter 1)2 by 
another wife, and 8 brings a suit for partition, and D2 is 
married after the institution of the suit, one-third of her 
marriage expenses should be deducted out of his one-third 
share, and as regards one-third of the marriage expenses of 
D his one-third share in the property may be charged with 
such expenses. But 8 is not liable for the marriage expenses 
of his brother’s (/S2’s) daughter, if any, she being the daughter 
of a collateral. Her marriage expenses should come out of 
her own father’s share (c). The same rules apply to the 
expenses of betrothal ceremonies of daughters. As regards 
the expenses of the thread ceremony of the members of the 
family it has been held that provision should be made for 
them on partition (d). 

As to marriage expenses while the family is joint, see 
s. 440 below. 

Funeral ceremonies of the mother, — Under tho Hindu Law, the sons aro bound to per- 
form at their expense the funeral ceremonies of their widowed mother even if she leaves 
siridhana and the stridhana descends to her daughters (e). If no provision is made for 
expenses of such ceremonies on a partition between the sons, then if one of tho sons 
performs the ceremonies at his o^vn expense, he is entitled to a contribution from his 
brothers (/). 

Adverse possession. — It has been held by tho High Court of Madras (y), dissenting 
from the High Court of Bombay (A), that possession, though e.<clusive, of a coparcener 
of a portion of the joint property for upwards of 12 years is not adverse against the other 
coparceners, if all the coparceners are in joint possession of the rest of the joint property. 
The other coparceners are therefore entitled to partition also of that portion of the 
property. As to exclusion from joint family, see sec, 236 (3a). 


(6) Narayana v. liatmhnga (1910) 39 Mad. 587, 
36 I.C. 428, (’17) A.M. 477. 

(c) Subbayya, v. Ananta (1930) 53 Mad, 84, 121 

I.C. 113, (’29) A.M. 586. 

(d) Jairatn v. NalAu (1907) 31 Bom. 54. 

{e) Vnjbkukandas v. Bai Parvati ( 1903) 32 Bom. 
26. 


(f) ratdi/anatfia V. J.iyasnmi(1909) 32 Mad. 191, 

200 I.C. 408. See Contract Act, 33 . 09-70. 

(g) Kutnarappa v. Sambiatha (1919) 42 Mad. 

431, 52 hC. 470, (’19) A.M. 531. 

(A) Fisftnu V, OanesA (1897) 21 Bom. 825. 


S. 304 



392 


HINDU LAW. 


Ss. 

304, 305 


jlaintehiince and m-iniage expenses . — Where a coparcener spends his own money 
tor the maintenance r»t those p-'*rson5 whom the late proprietor was bound to maintain 
e.Q., his ^udow and dauf;hter=;, and for the marriae;e expenses of the late owner’s daughter 
he is entitled to payment on partition of the amount so spent by him (i). 

305. Mode of taking accounts. — (1) No coparcener is 
entitled to call upon the manager to account for his past dealings 
with the joint family property, unless he establishes fraud, 
misappropriation or improper conversion [s. 238]. 

(2) No charge is to be made against any coparcener 
because a larger share of the joint income was spent on his 
family in consequence of his having a larger family to 
support (j). Similarly no credit is to be given to any copar- 
cener because a smaller share of the income was spent on him 
and his family. 

(3) A coparcener who is entirely excluded from the enjoy- 
ment of the family property is entitled to an account of the 
income derived from the family property, and to have his 
share of the income ascertained and paid to him, in other 
words he is entitled to what are called mesne profits {k). 
Mesne profits may also be allowed on partition where the 
family property or any part thereof has been held by a copar- 
cener who claims it as his exclusive property (1), or where 
an arrangement has been made between the coparceners 
to enjoy the family property in specific and distinct shares, and 
the enjo}’inent of those shares is disturbed (tn). Except in 
cases of this character, mesne profits are not recoverable in a 
suit for partition, and the partition must be made of property as 
it exists at the time when partition was demanded [n). One 
member is not in general entitled on partition to interest on 
money collected but not invested by another. Where one 
member had to pay more income-tax than was really due on 
behalf of the family by reason of his negligence he is not 
entitled to a credit for the excess amount (o). 


Interest on mesne profits . — Aa to interest on mesne profits, see the undermentioned 
case {p). 


(i) Bkoli Bai v. Dwarka Das (VXM) 
5 Lab. 375. 84 T.C. 108, (’25) A. L. 32. 

(j) Abhai/chandra v. Pyari Mohan {1670) 5 Bens. 

L R. 347, 349. 

{^) Kri*ikna v. Subbanna (1884) 7 Mad. 504, 
Venkata v. yarayya (1879) 2 Mad. 128, 
136-137, 7 l.A. 3S, 51 : Venkata v. The 
Court of Wards (1882) 5 Mad. 230, 9 l.A. 
125. See Code of Civil Procedure, s. 2, 
c. (12) and 0. 20, r. 12. 

{1) Bhivra V. 5ttaram (1895) 19 Bom. 532, 

(m) Shankar v. Jlardeo (1889) 10 Cal. 397, 10 
l.A. 71. 


(n) Pxrihi Pal v. Jovsahir Sinyk (1887) 14 Cal. 

49,3, 14 l.A. 37 ; Lakbhman v. Bamchandra 
(1870) 1 Bom. 501 ; Konerrav v. Gwrrai 
(1881) 5 Bom. 589 ; Jugmohandas v. 
Mangaldas (1886) 10 Bom, 52B, 28, 561 ; 
S arayan \ . y Qtha3x {\00A) 2.6 Bom 201, 
208 ; Parmeshwar v. Gobind (1916) 43 Cal. 
459, 33 I.C. 190, ('16) A.C. 500; Tam- 
inlrcddi v. Gangireddx (1922) 45 Mad. 
281, 70 I.C. 337, (’22) A.M. 236. 

(o) Yasobadra yavnar v. Samanihabadran (1930) 

59 Mad. 1 j4, 160 I.C. 002, (’36) A.M. 12). 
(/>) RaTnaeamu v. Subramania (1923) 46 Mad. 
47, 74 I.C 804, (’23) A.M. 147. 



PERSONS ENTITLED TO A SHARE. 


393 


II.— PERSONS ENTITLED TO A SHARE ON PARTITION. 

306i Porsons ontitlsd to r sIirto. — Every coparcener is 
entitled to a share upon partition {q). But every coparcener 
has not an unqualified right to enforce' or sue for a partition 
[see S3. 307-308]. 

307. Sons, grandsons and great-grandsons. — Every adult 
coparcener is entitled to demand and sue for partition of the 
coparcenary property at any time. 

In Bombay it has been held that without the assent of 
his father a son is not entitled to a partition if the father is 
joint with his own father, brothers, or other coparceners, 
through he may enforce a partition against the father if the 
father is separate from them (r). The other High Courts do 
not recognize any such exception (s). 


Illustrations. 


(a) If a joint family consists of a father and sons, the sons can enforce a partition 
of the joint family property against the father (f). Similarly, if a joint family consists 
of a grandfather and grandsons, the grandsons can enforce a partition against the 
grandfather (ti). Likewise, if a joint family consists of a great-grandfather and great- 
grandsons, the great-grandsons can enforce a partition against the great-grandfather {v). 
Thus far there is no difference of opinion between the various High Courts. 


(b) A joint Hindu family consists of .4, B and C, A being C’s grandfather, and 
B being C'b father, C sues A and 5 for a partition of the joint family property. Is C 
A * • entitled to a partition ? According to the Bombay High Court he is not, 

f unless his father {B) consents to the partition. In the view taken by that Court, 

® the father obstructs the son’s right to a partition. According to the other High 

I Courts, Of taking as ho does a vested interest in the ancestral property by birth, 

C can compel a partition even during the life-time of his father [5]. 


A 

i 

C 


(c) A joint family consists of A, B andC, A being O’s father and B being C’s uncle. 
; C sues A and B for partition. Is C entitled to a partition ? Accord- 

B ing to the Bombay High Court, he is not, unless his father (A) 

consents to a partition. According to the other High Courts, he is. 


The conflict of decisions referred to above has arisen from different readings of the 
same text of the Mitakshara ; see Mitakshara, chapter I, section 6, verse 3. 

In Sartaj v. Deoraj (tii), their Lordships of the Privy Council said : “The property 
in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in 


(?) Sartaj Kuan v. Deoraj Kuan (1888) 10 All. 
272, 287, 15 I.A. 51, 04. 

(r) Apaji V. Raraohandra (1892) 16 Bom. 29 
[Telangr-J-., dissenting] ; Rai Bisckenchand 
V. Asmaida Koer (1884) 0 All. 500, 574, 
11 I..\. 104, 179; Jivabhai v. Vadxlal 
(190.5) 7 Bom. L.Il. 232 [a case under the 
Mayukha], 

(») Jogul Kishore v. Shib Sahai (1883) 5 All 
430 [F.B.] [Stuart, C.J., dlssentiup]; 
Ram'^ahwar v. I/Offtnu (1904) 31 Cal 111, 
128-129 ; v. Ganaaa (1895) 18 Mad 


(0 


(«) 

(v) 

iW) 


179, 183; Diqambar v. Dhanraj (1922) 1 
Put. 361, 67 I.C. 150. (’22) A P. 96 
Suraj Biinai Koer v. Shco Proahad (1879) 5 
Cal. 148, 105, 6 I.A. 88. 100 ; Jugmohandas 
V. Mangaldas (1886) 10 Bom, 528 ; Kali 
Parshad v. Ram Charan (1876) 1 All. 159 
[F.B.], .. , 

Xagalinga v. Subbiramaniga (1862) l^Mad. 
H.O. 77 : Lalicet v. Rajcoovnr (1874) 12 
Beng. L.B. 373 

West and BulUer, 4th ed . p 622 
(1888) 10 All. 272, 287, 15 I A 5L, 64. 


Ss. 

306, 307 



394 


HINDU LAW. 


Ss. 

3Q7,308 


their Lordships’ opinion, so connected with the right to a partition, that it does not exist 
where there is no right to it.” 

Khojas. — The only branch of Hindu law which applies to Khojas is the law relating to 
succession and inheritance. This branch of the Hindu law is applied to Khojas on the 
ground of custom. No other branch of the Hindu law can be applied to Khojas unless 
it be shown that it is recognized among them b}' custom. Thus if a Khoja son claims 
partition of ancestral property against his father, he must prove that there is a custom 
among Khojas recognizing the right of a son to claim partition against his father. Such 
a custom was sot up in Ahmedbhoy v. Cassumbhop {x), but the Court held that there was 
no evidence in support of it and the suit brought by the son was dismissed. See notes 
to Sec. 582. 


The Punjab. — See Bari Kishan v. Chandu Lnl (1917) Punj. Boo. No . 106, 
p. 408, (’18) A.L. 291 [F.B.]. 

308. Minor coparceners. — (i) Where a suit is brought on 
behalf of a minor coparcener for partition, the Court should 
not pass a decree for partition, unless the partition is likely 
to be for the benefit of the minor by advancing his interests or 
protecting them from danger {y). 

Where an adult coparcener in possession of the family 
property is wasting the property, or sets up an exclusive title 
in himself, or otherwise denies the minor’s rights, or declines 
to provide for the minor’s maintenance, it is in the minor’s 
interest that the family property should be partitioned, and 
the minor’s share set apart and secured for him (y). But if 
there be nothing to show that the partition would be for the 
benefit of the minor, the Court should refuse to direct 
partition ( 2 ;). The reason is' that generally speaking “ the 
family estate is better managed and yields a greater ratio of 
profit in union than when split up and distributed among the 
several coparceners ; ” moreover the minor would as the result 
of a partition lose the benefit of survivorship which he might 
obtain if the family continued joint («). 

(2) But though a stiit cannot be brought for partition 
on behalf of a minor except in the cases mentioned above, the 
minority of a coparcener is no bar to a partition between the 
coparceners. A partition by agreement, though entered .into 
dming the minority of a coparcener, is binding on the 
noinor, unless it is unfair or 'prejudicial to his interests. 
If the partition is unfair or prejudicial to the minor’s interests, 


{X) (1889) 13 Bom. 534 

( 1 /) Mahadev v. Lakhhwm (1805) 19 Bom. 91) 
[maintenance refused] ; Bhoianalh v Ghusx 
Ram (1907) 29 All. 373 [suit 
father] ; Thangam v. Sapya (1889) 12 
Mad. 401 ; Kam'ik'ihi v. Chidambara 
(1806) 3 Dlad. JI.C. 94 ; Dtimoodvr v. 


•Sena6u(h/ (1882) 8 Cal 537. 

( 2 ) Bachao v. Mankorcbm (1905) 29 Bom. 51- 
60, n'llrmed on appeal (1907) 31 Bom. 
373 , 379, 34 T.A. 107 [suit by a posthu- 
rnouB son against an adopted son — parti- 
tion refused 1 

(fl) (1800) 3 Mad. H.C. 04, 06, 98, supra. 



PERSONS ENTITLED TO A SHARE. 


395 


the minor may, on attaining majority, have it set aside by 
proper proceedings so far as regards himself. He may also, 
on attaining majority, enforce the agreement by suit, and it 
is no answer to the suit that he was not a party to the 
a^eement (6). Where the family consists of ah adult and a 
minor, the adult coparcener can put an end to the joint status 
by his conduct and declaration (c). 

Sub-section (1) — The view takea in some of the earlier cases that a minor can sn© 
for partition only in cases of waste is no longer tenable. The law now is that a minor 
can sue for partition not only in a case of waste, but also where the circumstances are 
such as would render it for his benefit that his share should be divided off and secured. 

Sub-section (2) — In Balkishen Das v. Ramnarain (d), their Lordships of the Privy 
Council said : “ There is no doubt that a valid agreement for partition may be made 

during the minority of one or more of the coparceners. That seems to follow from the 
admitted right of one coparcener to claim a partition, and if an agreement for partition 
could not be made binding on minors a partition could hardly ever take place.*’ 

Institution of a suit for partition by minor, whether operates as a partition. — See s. 326 

(i) (ii). 

309. Son begotten at time of partition, but bom after 
partition. — son, who was in his mother’s womb at the time 
of partition, is entitled to a share though horn after partition, 
as if he was in existence at the time of partition. If no share 
is reserved for him at the time of partition, he is entitled to 
have the- partition re-opened and share allotted to him (e). 

Illustrations. 


(aj " A and his two eons B and C are members of a joint Hindu family. The father 
and sons propose to divide the joint family property. A's wife, X, is pregnant at the 
time, and the pregnancy is known to the family. In such a case, the property should 
be divided into five parts, of which A, B, G and X will each take one part, and the fifth 
part should be set apart to abide the event, so that if a son is bom, it may be allotted 
to him, and if a daughter is born, it may be divided again between A, B, 0 and X, 

(b) A and his son B are members of a joint family. The father and son divide 
the joint property between themselves, each taking one-half. Five months after the 
partition a son G is bom to A. The partition should be re-opened and the property 
should be divided into three parts, each member taking one-third. 

After-bom sons. — A son bora after partition may have been begotten either at 
the time of partition or subsequent to the partition. The present section deals with the 
former case ; the next section deals with the latter case. As to the rights of a son in 
his mother’s womb, see notes to sec. 270 at p. 328 above. 


(6) Balkishen Das v. Ramnaratn (1903) 30 Cal. 
738, 30 I. A. 139 [agreement held to be 
fair] ; Chanvirappa v. Danava (1895) 19 
Bora. 593 [ditto] ; Atoadh v. 5ilamm(1907) 
29 All. 37 [agreement enforced at suit 
of minor] ; Lai Bahadur v. Sispal (1802) 
14 AU. 498 [where the full share of the 
minor was not assigned to him] ; Krish- 
nabai v. Khangouda (1894) 18 ^m. 197 
(where no share was reserved for the 


minor at all]. 

(c) Dnyaneskwar Krishna v. Ananta Vasudeo 

(1936) 60 Bom. 730, 38 Bom. L.R. 579, 
164 I.C, 632, (’30) A.B. 290. 

(d) (1903) 30 Cal. 758, 752, 30 I.A. 139, 150. 

(e) Yekeuamutn v. Agnmcarian (1870) 4 3Xad. 

K.C. 307 ; Kalidas v. Krishan (1S69) 2 
Beng. L.B. [F.B.] 103, 118-121 i Uanmant 
v. Bhimacharya (1888) 12 Bom. 103, 
108-109. 


Ss. 

308,309 



396 


HIXDU LAW. 


S. 310 


310. Son begotten as well as born after partition.— 
A father separating from his sons may or may not reserve to 
himself a share on partition. The rights of a son bom as 
well as begotten after partition are different according as the 
father has or has not resem-ed a share to himself. 


(1) Where the father has reserved a share to himself, a son 
who is begotten as well as born after partition is not entitled 
to have the partition re-opened ; but in lieu thereof he is 
entitled, after the father’s cleath to inherit not only the share 
allotted to the father on partition, but the whole of the 
separate property of the father, whether acquired by him 
before or after partition, to the entire exclusion of the separated 
sons (/). Thus if A has three sons B, C and D, and he separates 
from them all, reserving one-fourth share to himself, and a 
son F is born to A three years after the partition, F will take 
on ^’s death the one-fourth share allotted to A at the parti- 
tion and also the whole of A’s separate property to the entire 
exclusion of B, C and D. If A has dissipated his share, and 
leaves no property, F takes nothing (p). Next, suppose, 
that A does not separate from all the three sons, but separates 
from B alone and remains joint with C and D, and F is sub- 
sequently born to A. In this case C, D and F will, on .4’s 
death, all take in equal shares the portion of the joint property 
allotted toA,C and D at the partition, and also A’s separate pro- 
perty ; that is to say, the separate property of A and the portion 
of the joint family property allotted to A, C and D at the 
partition will be divided equally among C, D and the after-born 
son F {h). The same principle applies if A separates from 
B and C, and remains joint with D, and F is subsequently born 
to A. 

(2) Where the father has not reserved a share to himself on 
a partition with his sons, a son who is born as well as begotten 
after the partition is entitled to have the partition re-opened 
and to have a share allotted to him not only in the property 
as it stood at the time of the original partition, but in the 
accumulations made with the help of that property (i). Where 
at a partition between a father, his son by the first wife and two 


Kahdot V, KrUhan (18C9) 2 Bene. L R. 
F. B- 103, 118-121 ; JVarcviZ Singh v. Jihug- 
wan Singh (1882) 4 All. 427, 

(p) Shirajtrao v. Vofianlrao (1910) 13 Bora 2C7. 
272, 2 I.C. 294. 

(A) Gan-pai v. Grypalrao (1699) 23 Bom. 630. 


this case criticised in Ghose’s Hindu 
Law, 3rd ed., pp. 572-573. See also 
Fakxrappn v. Yellappa (1898) 22 Bom. 
101: Sana v. Ramchandra (1909) 32 
Mad. 377, 2 I.C. 519. 

1 (0 Chengama v. (1897; 20 Mad. 75 



PBESONS ENTITLED TO A SHAPE. 


397 


sons by the second wife a small item was allowed to the father 
for maintenance, with a clause that an after-born son should 
be provided out of the share allotted to his mother and full 
brothers, it was held that the right of the after-born son to 
reopen the partition was not affected by the clause (J). 

311. Adopted son. — As to the share of an adopted son in 
a partition ; — 

(1) between him and after-born natural sons of his 
adoptive father, see sec. 497 ; 

(2) between him and other coparceners, see sec. 490 (2). 

312. Illegitimate son. — (i) An illegitimate son of a 
Hindu may be a son by concubine who is a dasi, or he may 
be a son by a concubine who is not a dasi. A dasi is a con- 
cubine who is in the exclusive and continuous keeping of a 
Hindu. An illegitimate son of a Hindu by a dasi is called 
dasifutra (k). We are here concerned only with a dasipuira. 

(2) Illegitimate sons of the three regenerate classes [s. 1] 
are not entitled to mheritance or to any share on partition ; 
they are entitled to maintenance only (1). This propo.sition 
is founded on the Mitakshara, ch. I, s. 12, para. 3. 

(3) Illegitimate sons of Sudras are entitled to certain 
rights of inheritance and partition. The text of the Mitak- 
shara bearing on the subject is as follows ; — 

“ The son begotten by a Sudra of .i female slave [t/asipt/tra] obt.iins a share by the 
father’s choice or at Ins pleasure. But after fthe demise of] the father, if there 
be sons of a wedded wife, let these brothers allow the son of the female slave 
to participate /or ^alf a share , that is let them give him half [as much as is the 
amount of one brother's] allotment ; ’ Mitakshara, chap i, sec. 12, para. 2. 

A Sudra father may be joint with his collaterals or he may 
be separate from them. The above text refers to the estate 
•of a separated householder (m). 

The following propositions are well e.stablished : — ■ 

(1) The illegitimate son of a Sudra does not acquire by 
birth any interest in his father’s estate. He cannot therefore 
enforce a partition against his father in his life-time (n). Bat 

(j) ^C/iiiinga Goun/Jer v. /{umjswumi (jvvndff \ (1884) 0 All. ; Itajani Xulh 2)as v, 

(19-ln) Mad. 297 [ .S*fni Chnndra Dvy 48 Cal. 04a, 03 

ik) Hahi\ Gontid (1B70) 1 Bom. i}7, UO , \ I.C. bO, ('21) A. C, 820 I F B.j. 

V. (1880) 4 Bom 37 [F.B ]; Kri'sh- I (/) Itonhan SiHf/h v. nahant .'din‘jfi (JOUO) 22 

na}j>/an v. Muttai.aMi (1884) 7 Mad. 407, | All l‘Jl, 27 l.A. 01 ; C/-u<jttir!/a V, Suhub 

412 ; Brindmand v, J{<uihamini (1889) 12 ; Purhulud (IH.'iTj 7 M 1. A, 18, 

Mad. 72, so, Soundurajan v. Annia- j fwi) Kanoji v. Knndoji H Had S')?, 5CI. 

chalam (1910) 39 Mad. 130, 33 f i' 838, (n) Jiftju Jorndm v. XiOjutiUfid (1891) 18 Cal. 

(’IO)A M 1170 , .Sara/futi v. Marinu j 101, l.>3. I* l.A 128, (1880) 4 Bom. 37, 

2 All. 134; Jlunjobind v. hharani Si»>jh 1 4*-4r», 


S$. 

310.312 



398 


HINDU LAW. 


Ss. 

312-314 


the father may, in his lifetime, give him a share of his property, 
even a share equal to that of a legitimate son (o). The gift by 
the father of some property, describing it as his self-acquired 
property, for maintenance, does not separate the illegitimate 
sons in respect of the joint family property (p). 

(2) On the father’s death, however, he succeeds to his 
estate as a coparcener with the legitimate son of his father, with 
a right of survivorship, and he is entitled to enforce a partition 
against the legitimate son. On a partition between an 
illegitimate and a legitimate son, the illegitimate son takes 
only one-half of what he would have taken if he were legiti- 
mate, that is, the illegitimate son takes one-fourth, and the 
legitimate son takes three-fourth (q). If either of them dies 
before partition, the survivor takes the whole estate (r). 

(3) If the father was joint at his death with his collaterals, 
e.g., his brothers or their sons, or his uncles or his sons, the 
illegitimate son is not entitled to demand a partition of the 
joint family property, but he is entitled as a member of the 
family to maintenance out of such property, provided his father 
left no separate estate (s). 

See notes to seo. 43, nos. 1-3, “ Illegitimate sons.” 


313. Absent coparcener, — ^An absent coparcener stands 
on the same footing as a minor, and his right to receive a 
share extends to his descendants {t). 

The right of the descendants, however, would be subject to the law of limitation : 
see the Indian Limitation Act, 1908, Sch. 1, arts. 127 and 144. 


314. Purchaser.^ — A purchaser of the undivided interest 
of a coparcener at a sale in execution of a decree can 
demand partition according to all schools. A purchaser of 
the interest of a coparcener by private contract can claim parti- 
tion in Bombay and Madras, but not in Bengal or the United 
Provinces. The reason is that according to the Mitakshara 
law as interpreted in Bengal and the United Provinces, a 
coparcener cannot sell his interest in the coparcenary property 


(o) Earvppanna v. Bulokam (1000) 23 Mad. 16 ; 

Packirvswamj/ v, Doraswamy (1031) 9 
Bang. 266, 132 I.C. 817, (’31) A.R. 216. 

(p) 5aArftaram5tfi«v,.SAamrao(1932)34Bom L. 

B. 191, 137 I.C. 572, (’32) A.B. 234. 

(g) Kamulammal V . Vm-ananiftaswawn (1928) 50 
I.A. 32, 40 Mad. 167, 71 I.C. 643, (’23) 
A.PC. 8. 

(r) J?a;a Jogendra v. Nityanand (1891) 18 Cal. 
151, 17 I.A. 128. 


(«) Vellaiyappa Chetty v. Nalarajan (1932) 55 
Mad, 1, .58 I.A. 402, 134 I.C. 1084, (’31) 
A.PC. 294; Ranoji v. Kandoji (1885) 8 
Mad 557; Sadu v. Baiztt(1880) 4 Bom. 37, 
44-45 [l'’.B.l ; Thangam v. Suppa (1889) 
12 Mad. 401 ; Karuppa v. Kutnarasami 
(1902) 25 Mad. 429 ; GopalaMvami v. 
Arunachellam 27 Mad. 32 ; Parvathi 
V. ThiTutnalai(18S7) 10 Mad. 334. 

{t) Strange’s Hindu Law, vol. i, p. 200 ; vol. 
ii, p. 341. 



PERSONS ENTITLED TO A SHARE. 


399 


without the consent of the other coparceners [ss. 260 and Ss. 
261]. 314.315 

A gift or devise by a coparcener o£ hia undivided interest is void according to the 
Mitakshara law as applied in all the provinces [s. 258]. Therefore, a donee or a devisee 
of an undivided interest cannot sue for partition (it), 

315. Wife. — (i) A...Ayife . cannot herseli .demand.. , -a 
partition.(i?), but if a partition does take place between her 
husband and his sons, she is entitled to receive a share equal 
to that of a son and to hold and enjoy that share separately 
even from her husband {vS). Where at a partition between a 
father and his three sons, the wife was not allotted a share, it 
was held that she was entitled to reopen the partition, there being 
no waiver merely by her not asking for a share but that in the 
partition the value of the ornaments taken by her must be 
taken into account {x). Where a son institutes a suit for 
the partition of joint family property impleading his 
mother and other members of the family as defendants and 
a prelimmary decree is passed, the mother does not become 
owner of the share allotted to her until the preliminary decree 
is carried out and there is a division by metes and bounds. 
Therefore a mortgagee suing on a mortgage before the property 
is actually divided can obtain a valid mortgage decree without 
impleding the mother (y). 

(2) The expression “ wife ” in relation to “ sons ” 
includes their^ep-mqther (z). 

(<?) If the wife has stridhana given to her by her husband 
or father-in-law, its value should be deducted from her share (a). 

{4) The above rules also apply when a father himself 
makes a partition of ancestral property among his sons [s. 325]. 


JUusiraiions, 

(a) A has two wives B and C, a son D by and four sons by 0. B sues his father 
*4 for partition. Each of these eight persons is entitled to a one-eighth share including 
B and C : BuUr Koeri v. Dwarlcanath (1905) 32 Cal. 234. (See as to mother, s. 316, 
below]. 


('0 Baba v. Timma (1884) 7 Mad Sd'IKJ!.]. 
(tf) Pnnna Jhbee v. liadha (1904) 31 Cal. 

476. 

( '(’) Dular Kocri v. Dwarlmnalh (190j) 32 Cal. 
234 [suit for partition by son against 
fatlit^r] , Jairam v. yalhu (1907) 31 Horn. 
o4 [ditto] ; Stimrun v. Chutider ^^un 
(1882) 8 Cal. 17 ; I'artap Siiufh v. JXUip 
Sinifk (1930) o2 All. 590. 125 I.C. 702, 
(’30) A. A. 537 ; Dhunabathi Jiibi v. 
PratapmuU A'jurivalla (1934) 01 Cal. 1056, 


154 fC. 055, (’35) A.C 131. 

(j) Itadhabai v. PandJuirinalh (1942) Nag 554, 
194 I.C. 724, ('ll) A.N. 135. 

(y) PratapmuU Agurwnlla v. Jjfaoiabnti Bibi 
(1936) 63 I. A. 33, 03 C:il 691, 38 liom. 
L.U. 323, 159 I.C. lOSO, (*31)) A.P('. 20. 
(i) (1907) 31 Bom 54 [Miivuklm], mpru : 
IIo'>bannn v DctUiiini (1924) 48 Ijom. 
408. 80 r.C. 408, (’24) A. B. 444 
[Mitalc^hJira]. 

(a) (1907) 31 Bom. 54, ^apra. 



400 


HINDU LAW. 


Ss. 

315 , 316 


(b) A has a wife B, two sons by B, and a son C by a predeceased wife. C sues 
Ilia father -4 for partition. Each of these five persons is entitled to a oiie-fifth share 
including B : Jairiim v. Nalhii (1907) 31 Bom ol, 

Miulras Premdenci /, — In Southern India the practice of allotting shares upon parti- 
tion to females has long since become obsolete (6). See Strange’s Hindu Law, 5tli ed,, 
p. 178, f.n. (a) and Macnaghten's Hindu Law, 3rd ed., p. 50. 

Pntrabhaga . — When the division is by number of sons it is called putrahhaga . when 
the division is according to inves, it is known as palniOkagn. Pjjtnihhaga is now the 
recognized mode of division. But the custom of painibhaga prevails in some places and 
in some families espcciallj* among >S'«rfru5 (/*). 

Whether a share allotted to a wife on jnirtition is her siridhana ^ — The share allotted 
to a wife (which expression includes step-mother) on partition is not her stridhana unless 
it be shown that it was given to her absolutely [s. 128]. 

The present section deals with the rights of a female who occupies the position of a 
M'ife. The next section deals with the rights of the same female af^er her husbands death , 
that is, a female uho has become a widoWj and occupies the position of a 7na*.a, that is, 
mother or sitp-mothery towards the sons of her deceased husband. 

316. Widow-motlier. — (i) A mother cannot compel a 
partition so long as the sons remain united. But if a partition 
takes place between the sons, she is entitled to a share equal 
to that of a son in the coparcenary property {d). She is also 
entitled to a similar share on a partition between the sons and 
the purchaser of the interest of one or more of them (e). Where 
. a son sues for partition but dies during the pendency of the 
i suit and the mother was brought in as the legal representative 
' she is entitled only to his share and not to a mother’s share (/). 
See sec. 35. 

(2) If the mother has received stridhana from her husband 
or father-in-law, its value should be deducted from her share {g). 

(3) The term “ mother ” in this section includes 
step-mother (k). 

(4) On a partition between sons by dilferent mothers ' 
when more than one mother is alive, the rule is first to divide 
the property into as many shares as there are sons, and then 
to allot to each surviving mother a share equal to that of each 
of her sons in the aggregate portion allotted to them (i). 


(6) Y. itad. •, 

1 . 8 . 1 
(c) Palanuippu v. Alayyan (1921) 48 I.A, 539, ' 
44 Mad. 740, 04 I 439, ('22) A.PC. 228 ; 

{d) Damwdvr v. SemibutUj (1882) 8 Cal. 537; ‘ 
Damocd(udan v. UltnmTam (1893)17 Jioin j 
271. t'hoicdhrif (Janenh Dull ^. Jemirh ! 
(1904) 31 Cal 202, 271, 31 I A. 10. 15 . ; 
Jsree Pershad v, Nasib Koer (1S84) 10 Cal. ! 
1017 [alleged waiver of riiiht to partition! • 
(e) Bifiso V. Dina iS'uf/idBrtl) 3 All 88 , AiHrifa I 
Lull V. Mamck Util (1900) 27 Cal. .551 ; I 
Jngrndm v. Fulkummi (1900) 27 ral. 77 j 
(Indmnciit rented on the Davalihai»a] ! 
(/■) Parbdtulcvi v. Bausidhur (1943) All! 810, i 


(■43) A. A. 350. 

(y) Ki^horx V. .Ifoni Mohun (1886) 12 Cal. 165 i 
.ladoo yath v. Broiorwth (1874) 12 Beui: 
L.il. 385. 

(A) Davioodur v Senabiithf (1882) 8 Cal. 537; 
Dainoilurdtis v. Ultamrum {18QZ) 17 Bom 
271, 230-287 ; Ilur yaruin v. liishambhr/r 
(1916) 38 All. 83, 31 I.C. 907, ('1.5) A A 
340 . 7Vj/A Indnr v. Hnnuim (1025) 0 Lnh 
457, 90 I.C. 3035, ('25) A.L. 508*. .SuArb 
im V. .SW^7 AAmad(1927) 31 C.W.S 072. 
101 I.C. 426. (’27) A.PC. 101. 

<i) KnAo B/m'-uirty v. Ashutoah (1.880) 13 Cal. 
39. 



PERSONS ENTITLED'TO A 'SHARE. 


401 


llltislrations 

(a) A die.s leaving a widow J5, three sons by B, and a son Z by a predeceased wife. 

X sues his step-mother B and his three half-brothers for a partition. The property yill 
be divided into 6 parts, each of the 5 persons above-named including B taking one-fifth : 
Dumodardas v. Vtlatnram (1893) 17 Bom. 271. 

(b) A dies leaving two rvidows, B and C, two sons by B, and three sons by C. On 
a partition between the sons of B and C, the mode of division is first to divide the property 
into 5 shares corresponding to the number of sons. The two sons of B will share 2/5 
equally with their mother B, each taking 1/3 of 2/5, i.e., 2/15. The three sons of C will 
share 3/5 equally with their mother 0, each taking 1/4 ol 3/5, i e., 3/20. Thus B will 
take 2/15, and C will take 3/20. 

(c) A dies leaving two widows B and C, and two sons D and E hy B. C has no son. 
}) sues E, B and C for partition. The property will be divided into 4 parts, there being 
2 widows and 2 sons, and each widow will take one-fourth and each son also will take 
one-fourth. The fact that C has no son does not affect her right to a share ; See 
Damoodur v. Senabutiy (1882) 8 Cal. 537. 

Partition between legitimate and illegitimate sons of a Sudra. — Among Sudras, a mother 
is entitled to a share on a partition between her sons and the illegitimate sons of her 
husband (j). 

Madras Presidency. — In Madras a mother is not entitled to a share. She is entitled 
only to a provision for her maintenance which must not in any case exceed the share of 
a son (b) ; Smriti Chandrika, chap, iv, paras. 12-17. See also notes to sec. 315. 

Whether the share allotted to a mother on partition is her stridhana. — See sec. 128 above. 

Omission to reserve a share for the mother. — The omission to reserve a share for the 
motlier does not render the partition invalid (1). 

Sale of one of the properties before decree in a partition suit, — See sec. 353 (7). 

317. Grandmother. — (i) A paternal grandmother (father’s 
mother) cannot herself demand a partition, but when a 
partition takes place between her sans’ sons, her own sons be ing 
thq^, she is entitled to a share equal to that of a son’s son (m). 
She is similarly entitled to a share when a partition takes place 
between her son and the sons of a deceased son [n). But when 
partition takes place between her son and his sons, it has been 
held by the High Courts of Allahabad (o) and Bombay (p) that 
she is not so entitled ; and by the High Courts of Calcutta {q) 
and Patna (r) that she is ; the last decision proceeds on a text 
of Vyasa which allows her a share on such a partition. But 
now see sec. 35 and notes to secs. 43 and 316. 

(n) Ba6«nrt v, Jaqat Surain (1928) 50 All 532, 
109 I.C 61. (’28) A. A 330. 

(o) Sheo Sarain v. Jixnki Prasad (1912) 34 All 
505, 16 I.C. 88. 

(m) Jamnabai v Vasudeo (1930) 54 Bom. 417, 
124 I.C. 793, (’30) AB 302: JoUrani 
Ekoha V. liaxmchandra Tnmbak (1941] 
Bom. 638, 197 I C. 788. (’41) A B 382 
(tf) Badri Ro>i \ (1882) 8 Cal. 649. 

(r) Knshna Lai v. JS'nnde^hwar (1919) 1 Pat, 
L. J. 38. 42-44, 44 I C. 146. (’18) A.P. 91, 


(;) Manchharamw Daitu (1920) 44 Bom. 

I.C. 110, (’20) A.B. 241 
{k) Vcnhntummal v. Anduappa (1883) 6 Mad 
130. 

(/) Choivdhni Ganesh Dutt v Jeicacli (1904) 81 
Cal. 262, 271, 31 I.A 10, 15. 

(»») Kanhuiya Lai v. Gaura (1925) 47 All. 127, 
83 I.C. 47, (’25) A. A. 19 ; Viilinl v Prahlad 
(1915) 39 Bom. 373, 28 I.C 967, (’15) 
A.B. .3ri 


Ss. 

316, 317 



402 


HINDU LAW. 


. Ss. 
317-319 


(2) The expression “ grandmother ” in this section 
includes step-grandmother (s). 

Illustration. 

A has a son 5, a mother M, and two wives W and TVl. B sues A for partition. 
Under the Dayabhaga law, each of these five persons would be entitled to 1/6. Under 
the Mitakshara law, ][[ would not be entitled to a share and each of the other persons 
would take 1 /4. 

fcVl’tf siliSf’e aUoiCcd (o a grandmother on pcfftitean is her sttidhana P — See s. }28 

above. 

No female except those mentioned in sa. 315 to 317 is entitled to a share on partition. 
Thus daughters, sisters, etc., are not entitled to a share on partition. But on a partition 
provision must be made for their maintenance and marriage expenses : see s. 304. 

318. Disqualified coparceners. — Persons who by Hindu law 
are disquahfied by physical infirmity from inheriting are also 
disentitled to a share on partition. This subject is dealt 
with in sections 106 to 109. 


Ill— RESTRAINT AGAINST PARTITIONS. 

319. Agreement not to partition. — It has been held 
by the High Courts of Calcutta (i), and Allahabad (w), that an 
agreement between coparceners not to partition coparcenary 
property binds the actual parties thereto, but it does not 
bind their assigns, unless there be a stipulation not to assign. 
A compromise followed by a decree providing that certain 
properties sbo\dd be divided and certain other items should be 
kept joint for ever, was held to be enforceable in law (v). 
On the other band, it has been held by the High Court of 
Bombay that such an agreement does not bind even the 
parties thereto, so that any party may, notwithstanding the 
agreement, sue the other parties for a partition {w). A similar 
view has been taken in Madras (x). 


lUustraiion. 

Calcutta decisions . — ^4 and B, two Hindu brothers, agree not to partition the coparce- 
nary property. After the date of the agreement, A sella hia intereat in the joint 
property to P. The agreement is not binding upon P, there being no stipulation not 
to assign. P may, therefore, sue B for partition. 

See the Transfer of Property Act, 1882, ss, 10-11. 


(«) Vxtltaly Pra Wad (1915) 39 Bom. 373, 281 C. 
967, (’15) A, B-. 35 ; Srxram\. JJancharan 
(1930) 9 rat. 333, 12,') I C. 518, ('30) A 1*. 


(0 Anand Chandra v. pj-an Kuio (1869) 3 Hoim. 
L.U.O.C. 14, Anath Nalh v. Marlmlosh 
(1871) 8 Henij. n, (jo , Itujendrr v 
Shaw CAuKd (1881) 6 Cal 106; Sninoh(m 
V. Maegregor 28 Cal 769, 786 , KrxH- 

hendra v. Debendra (1908) 12 C. W K 


(u) Rnp Singh v. Bhubhuti (1920) 42 All. 30. 
56 I.C. 632, ('20) A A. 341. 

(') JyoUsh Chnndm Narayan v. Ttaihika 
Chandra Narayan (1933) 00 Cal. 1078, 149 
I C. i:)0, (’33) A C. 892. 

(w) Ram'mya v. Vinxjmkshi (1883) 7 Bom. 538. 

(a;) Arum'ujha Chetiy v, Banganalhan Chclty 
(1934) 57 Mad. 405, 140 I C 1057, (’33) 
A.M. 847. 



ALLOTMENT OF SHARES. 


403 


It is open to Hindu- brothers to divide the family property and to agree that upon 
the death of any one of them witkoui male issue his share shall pass to the surviving 
brothers. Such an agreement is not in contravention of the provisions of Hindu law (y). 
But it is not open to the contracting parties to lay down a rule of inheritance for the 
property in the hands of the last survivor in derogation from the ordinary rules of Hindu 
law (r). 

320. Direction in a will prohibiting partition. — A direction 
in a will prohibiting a partition, or postponing a partition 
for an indefinite period, is invalid (a). 

See the Indian Succession Act, 192S, ss. 77 and 163. 


IV.— ALLOTMENT OF SHARES. 

321. Shares on partition.— On a partition between the 
members of a joint family, shares are allotted according to 
the following rules : — 

1 . On a partition between a father and his sons each son 
takes a share equal to that of the father. Thus if a joint 
family consists of a father and three sons, the property will be 
divided into four parts, each of the four members taking 
one-fourth. 

2. Where a joint family consists of brothers, they take 
equal shares on a partition. 

3. Each branch takes per stirpes (that is, according to the 
stock) as regards every other branch, but the members of 
each branch take per capita as regards each other. This rule 
applies equally whether the sons are all by the same wife or 
by different wives [ills, (a) and (b)]. 

It has been laid down by the High Court of Madras 
following the authority of the Smriti Chandrika, that rule 3 
applies to cases in which all the coparceners desire partition at 
the same time. In cases in which only some of the members 
of a joint family separate from it at one time and others on a 
subsequent occasion, regard should be had to the shares allotted 
at the first partition in computing the shares to be allotted at the 
second partition (6). On the other hand, it has been laid down 
by the High Court of Bombay, following the authority of the 
Vyavahara Mayukha, that in allotting shares at the second 
partition, regard is to be had to the state of the family at the 
time of the second partition, and not to the state of the family 


(y) Kanti v. Al-i-Nahi (1011) 33 All. 414, 9 I.C. 

935 ; Ram Nxntnjun v. Prayag Singh 
(1882)8 Cal. 138. 

(z) Bage^har Rai v. A/a/iadci'i (1924) 46 All. 525, 

79 I.C. 514, (’24) A.A. 461. 

(o) Mokoondo v. Gonesh Chunder (1876) 1 Cal. 
104 : Raikishori v. Debendranath (1888) 15 


Cal. 409, 15 T.A. 37 ; Poorendra Nath v. 
Remanginx (1909) 30 Cal. 75, at p. 77, 
lie 523 

(6) Manjanalba v. iVarai/aiia (1882) 5 Mad. 362; 

Shanlar (1930) 53 Mad. 1, 
121 I.C. 1, ('29) A.M. 805 [F.B.]. 


Ss. 

319-321 



404 


HINDU LAW. 


S. 321 


at the first partition (c). The ordinary rule is that partition 
should be made rebus sic stantibus as on the date of the suit, 
i.e . . according to the condition of the family as on the date of the 
suit. According to the Madras High Court, this rule is to 
be applied at the first partition only, and not at the second 
partition. According to the Bombay High Court, the rule 
is to be applied at both partitions [see ills, (c) and (d)]. 

4. On the death of a coparcener leaving male issue, his 
right to a share on partition is represented by his male issue, 
that is it passes to his male issue, provided such issue be within 
the limits of the coparcenary. 


JUustratinns. 

(a) -t die.s leaving a son B, two grandsons and C',, three great-grandsons 
Fo and F~. and one great great-grandson K. 

A (dead) 


B C (dead) 


1) (dead) E (dead) 


Cl 


Cj F (dead) 



G (dead) 
1 (dead) 

I 

K 


Here there are four branches of the joint family represented respectively by the four 
sons of A and their descendants. E'a branch takes nothing as K, tho only surviving 
member of that branch, is outside the limits of the coparcenary, being beyond the fourth 
degree of descent from -4, the common ancestor [s. 215], The joint property will therefore 
be divided per stirpes into three parts corresponding to the remaining three branches, 
each branch taking 1/3. The result is that B will take 1/3, C-^ and C-j will take the 
one-third share of C equally between them, each taking 1 /2 of 1/3, i.e., 1/6, and i’j, F^i 
and ^3 will take the one-third share of D equally between them each taking 1/3 of 
1/3, I.P., 1/9. 

(b) A dies leaving four grandsons, D, E, F and 0, and nine great-grandsons as 
shown in the following diagram : — 

A (dead) 


B (dead) C (dead) 


I III II I 

Di Dj Dg Ej Fj Fg Gj G2 Gg 

All the coparceners are desirous of separating from one another. Here there are 
two branches of the joint family represented respectively by the two sons of A. The 
(c) Pranpiandas v. Ichharam (1U15) 39 Itom. 731,30 I.C. 918, (”l5) A. B. 255. 



ALLOTMENT OF SHARES. 


405 


])rc.perty will, therefore, be divided into two parts, B's branch taking i;2, and 0’.? branch S. 321 
taking 1,2. -4s to B's branch, D and his sons Dy, D« and D3 will each take I d of 

1 ,2. i.e., 1 ;8, each son taking a share equal to that of the father. As to C's branch, each 
of the three sub-branches represented by E, F and (!, will take 1.3 of 1,2. i.f., 1 fi, E 
and El will each take 1/2 of 1/6, i.e., 1 12 ; F, Fi and J’2 each take 1,3 of 1,6' j.e., 

1 ,18, and G, t?i, and Gg will each take 1/4 of 1,6, i.e., 1/24. 

(c) A Hindu, .4. governed by the Mitakshara school of Hindu law. dies leaving 
a grandson D, and seven great-grandsons as shown in the following diagram : — 

A (dead! 


i 


B ide.rd) 

1 

C (df;uli 

1 

i 

1) 

! 

1 i i , . 

E (dead/ F (dead) G (dead, 

! ' I 

“i 1 

SJ., LI3 

1 i i ! 

El Fi Y, Oj 


ilj, Fj, Fj. and (?j institute a suit against B, B 3 , and Fj fer partition. What 
are the respective shares of the parties in the prop-c-rty ? Here there are two branches of 
the joint family ; the property will therefore be divided into two part.;, B's branch tafcmz 
1/2 and C's branch taking 1, 2. As to B's branch, JD and his sons 2>j, and vriB 
each get 1 ,4 of 1 j2, i.e., 1,‘3. .4s to C's branch each of the three sub-branehes represented 

by E, F and G, will get 1/3 of I 2, f.c., 1,6. Fj will get 16, Fi and Fe wiii each get 
1/2 of 1/6, i.e., 1/12, and (?i will get 1 6. The five plaintiffs take their respective 
shares, and leave the family. D, D3 and £j continue joint a.s before. Their sLarefl. 
it ha.; been seen, are as follows ; — 

D 1 S 

I) 1/8 

Ej —1 6 

.'i;12 

Z) then dies, .4fter D's death, bis son sues Fj to recover his sLsre of. tUiiffi' fajinQil^ 
property. What is the share of XI3 in the property t According to tlae M^li 

Court', as representing B's branch is entitled to 1,2,- 5 12=5 24. atrd Ej repseaenn- 
ing C's branch is entitled to the remaining 5/24, Accordisig so SLs' Madns.; Mikh] 
on the death of D, the right to represent bis share passes to his siiia .so* llinit ui- 
entitled to get 1 /8d-l/8, i.e., 1 /4 and Fj retains his origsnsS share I ■ 6‘- See molli !£ aihitw,. 

(d) A Hindu, A, governed by the JUtakshara school of HiEBfei iewr. fSie» teuwuig!: 
four sons, B, C, D and F, and five grandsons, Bi, B^. € i, ansi a-s* sibownu mi tlba^ 
following diagram : — 


A (d'cad'l 



Thereafter F dies. In 1892, B 2 receives his share l/.3xl,4 — I 12, and f''»Tcs 
family. The rest of the family continues joint. Thun C dies, then !>, ib'Ci F, 
then £3. 



406 


HINDU LAW. 


Ss. 

321,322 


In 1 91 1 , .Bi sues Ci and Dj for a partition. According to the Bombay High Court 
the property is to be divided into three parts, as there are three branches subsisting at 
the date of the suit, namely, B's branch, C’s branch, and D’a branch, so that Bj, Ci and 
Di ■will each take 1/3. According to the Madras High Court is entitled to 1/3 — 
1/12 [1/12 being the share allotted to B 2 'when ho left the family]=l,'4, and not 1/3. 
See rule 3 above. 

V.— PARTITION HOW EFFECTED. 


322. What is Partition. — (1) According to the true notion 
of an undivided Mitakshara family, no individual member 
of that family, whilst it remains undivided, can predicate of 
the joint property, that he — ^that particular member — -has a 
certain definite share, one-third or one-fourth. (^Partition, 
according to that law, consists in a numerical division of the 
property, in other words, it consists in defining the shares of the 
coparceners in the joint property ; an actual division of the 
property by metes and bounds is not necessary {d). Once 
the shares are defined, whether by an agreement between the 
parties or otherwise, the partition is complet^ After the shares 
are so defined, the parties may divide the property by metes 
and bounds, or they may continue to live together and enjoy 
the property in common as before. But whether they do the 
one or the other, it affects only the mode of enjoyment, but not 
the tenure of the property. The property ceases to be joint 
immediately the shares are defined, and thenceforth the parties 
hold the property as tenants-in-common (e). Where at a 
partition between a Hindu, his two sons, and his two wives 
one-fifth was allotted to each of the sons and three-fifths to the 
father and his wives, it was held that the father and his wives 
became tenants-in-common, but though they had not divided their 
shares by metes and bounds inter se there could be no re- 
union between them, and the father therefore had no right to 
sell the properties of the wives and any such alienation by him 
was not binding on them (/). 

(2) The importance of the question whether there has 
been a partition or not lies particularly in the following 
respects ; — 

(i) An. undivided Hindu governed by the Mitakshara school 
has no power to dispose of his interest in the joint 


<tt) Appoi ier v, Raniu Subta Aiyan (18C6) 11 M. 
I.A. 75- 8&'90 ; Ram Pcrxhad v. jMkhjiai% 
(1003) 30 Cal. 231, 255, 30 I.A. 1 ; Sheodan 
y. Balkaran (1921) 43 All. 193, 59 1.C. 116. 
(■21) A.A. 337. 


(c) Balhishen Das v. Ram Naram (1903) 30 Cal. 

738, 751, 752, 30 I.A. 139. 

(/) Nanuram v. Radhabai (1942) Nag. 24, 
('40) A.N. 241. 



PARTITION HOW EPPECTED. 


407 


property by gift or by will [s. 258] ; nor can be alienate S 
bis interest even for value except in tbe Bombay and 322, 
Madras Presidencies [ss. 259, 260]. A divided member 
can, except where be continues joint with bis own male 
issue [s. 223, sub-s. (4)], deal with tbe share allotted 
to him at tbe partition as his separate property ; he 
may sell it, mortgage it, make a gift of it, or devise 
it by wiU. 

(ii) The undivided interest of a coparcener passes on bis death 

to tbe surviving coparceners [s. 229]. Tbe share allot- 
ted to a coparcener on partition passes on bis death to 
bis heirs, except where be has remained joint with bis 
own male issue in which case it goes to them by 
survivorship [s. 223, sub-s. (4)]. 

(iii) Partition between male coparceners entitles the wife, 

mother, and grandmother to a share in the joint pro.- 
perty [ss. 315-317] ; they are not entitled to any such 
share mitil division by metes and bounds {g). 

(iv) There can be no reunion until there has been a partition. 

To determine the question whether there has been a 
reunion, it may become necessary to determine 
whether there has been a partition (A). 


323. Partition by father during his lifetime. — The father ofa 
joint family has the power to divide the family property at any 
moment during his life, provided he gives his sons equal shares 
with himself, and if he does so, the effect in law is not only a 
separation of the father from the sons, but a separation of the 
sons inter se. The consent of the sons is not necessary for the 
exercise of that power (i). But a grandfather has no power to , 
bring about a separation among his grandsons. Even if he 
allots shares, they remain joint (j). The right of a father , 
to sever the sons inter se is a part of the patria potestas still j 
recognized by the Hindu law {h). 


When under a partition by a father unequal shares are given to the sons, the trans- 
action will be binding on the sons as a family arrangements ^ if acquiesced in by them {1). 


ig) Pratapmnll Agarwalla v A. Dlianabati Bihi 
a930) 03 I. A. 33, 03 Cal 0U1.38 Bom. 
L. U. 323, 159 I.C. 1080, (dO) A.PC. 20. 

{h) Tim was the case m Bata v. Uopal (1907) 
5 Cal. L.J. 417 [a Davalifiaga case], ami 
Lakshmibni v. Gnnpat (1868) 4 Boiii H C. 
0 C. 150, 106. 

(i) Kmd-asami v. Dornisami (1880) 2 Man. 317, 


321 , Nirmnn v. Fateh (1030) .>2 All. 17S. 
126 r.C. 337. (’20) A A Odd 
ij) SnblHimmi Beihh v Cht'ncliuraghani Beddi 
(1045) Mad. 1714 

(A-) But bce W ami Bulilor, 4tli Kcl., p. 017. 

(i) Brijraj A'uu/h v. S/irudiai (1913) 35 

AH. 337. 40 I.A 161, 10 I C 826. 



408 


HINDU LAW 


Ss. 

324, 325 


324. Whether father can effect partition by a will. — No 
coparcener, not even the father, has a right to make a parti- 
tion by will of joint family property among the various 
members of the family except Avith their consent [m) 


325, How partition may be effected. — Partition is a sever- 
ance of joint status, and as such it is a matter of individual 
volition {n). All that is necessary, therefore, to constitute a 
partition is a definite and uneqivocal indication of his intention 
by a member of a joint family to separate himself from the 
family and enjoy his share in severalty It is immaterial, in 
such a case, whether the other members assent. Once a member 
of a joint family has clearly and unequivocally intimated to 
the other members his desire to sever himself from the joint 
family, his right to obtain and possess his share is unimpeach- 
able whether or not they agree to a separation, and there is an 
immediate severance of the joint status The intention to 
separate may be evinced in different ways, either by explicit 
declaration or by conduct (o) It may be expressed by serving 
a notice on the other coparceners (p), and the severance of 
status takes place from the date when the communication was 
sent and not when it was received {q) The notice, however, 
may be withdrawn with the consent of the other coparceners (r). 
It may also be expressed by the institution of a suit for 
partition. An oral request made by an elder brother, at 
the tune of his death, to his younger brother to give half the 
property to the widow of the former, does not amount to a 
separation (s) Where a simple money decree was obtained 
against the father and in a suit on behalf of his minor sons for a 
declaration that the debt for which the decree was passed was 
immoral, the District Munsiff found that the debt was not 
immoral but on the ground that the decree was a money decree, 
declared that the sons’ share was not liable to be sold in 
execution, it was held that these facts did not constitute 
separation of the sons from the father {t) 


(m) (laH) All 337, 3«, 40 I A IBl 19 

IC 920 supra ITarlnh Sinth \ Harden 
(l')27) 49 All 703 102 I C 06 ( Z') A \ 
4 )4 

(n) (,irja liai ^ iadashii (1916) 43 I A 111 

101 43 CO 1031, 1049 37 T C 321 (10) 
A PC 104 ' ' 

(o) DnimnnhwaT Krishna v Anant 1 asiideo 

(1936) 00 Bom 736 38 Bom I P, 579 
104 I ( 632 ( 36) A 11 290 

(p) Oirjii Bin V Sadashii (1010) 43 I A 131 43 


fal 1031 17 1 c 321, ( 16) A PC 104 
supra 

(g) Aarawnu Pan v Purinhntimma Ban (1938) 
Mol 31-, ( 39) A M 390 

(r) Bante Bilmn \ Bn) Bihari (1929) 51 All 

">19 110 I ( 28 , ( 30) A A 170 

(s) Bfii (tppa Budruppa r, Bndnna ( hanbasappa 

(IIW*) 17 Bom 1, 142 I ( 164, ( 32) A B 

H) Palm Ini \ Piirbltuniih Aitir (1943) All 
20) 207 1 0 229 ( 4)) A A 214 



PARTITION HOW EFFECTED. 


409 


(1) Partition by institution of suit . — (i) Suit by adults . — 
The institution of a suit for partition by a member of a joint 
family is an unequivocal mtimation of his intention to separate, 
and there consequently is a severance of his joint status from the 
date when it is instituted. A decree may be necessary for 
working out the results of the severance and for allotting definite 
shares, but the status of the plaintiff as separate in estate is 
brought about by his assertion of his right to separate, whether 
he obtains a consequential judgment or not (^^). And if the 
plaintiff dies the suit can be continued by the heir {v). But 
if the suit is withdrawn before trial, the plamtiff not desiring 
separation, there is no severance of the joint status {iv). Or 
if the defendant dieS' and the suit is withdrawn on that ground 
there is no separation {x). Even a decree passed by consent 
dees not effect a severance if its terms are not carried out and 
the members continue to live together having abandoned 
their decision to separate (y). 

Withdrawal before trial . — This means withdrawal before final decree (z). 

In Falani Ammol’s case (o), the Judicial Committee obfserved that a plaint claiming 
a partition, even if withdrawn, would, unless explained, afford evidence that an intention 
to separate had been entertained. 

(ii) Minor’s suit for partition . — It has been held by the 
High Court of Allahabad (b), that the mere institution of a 
suit for partition by a minor followed by the abatement of the 
suit by the death of the sole defendant does not effect a sever- 
ance of the joint status [for reasons see sec. 308]. In a suit for 
partition brought by the father and his minor son as plaintiffs 
against the other members of the joint family, in which it was 
contended by the minor’s mother as the guardian, and found by 
the Court that the separation was not in the interests of the 
minor, it was held, that the institution of the suit does not 


(u) Girja Bai v. Sadashiv (1910) 43 I.A. lol, 43 
Cal. 1031, 37 I.C. 321, (*10) A VC. 104 ; 
Katval yain v. Prabhulal (1017) 44 I A. 
159. 39 AH. 496, 40 I.C. 286, ('17) A.PC. 

39 , Suraj Narai'n v. Igbal Xaraiti (1913) 

40 I A. 40, 45, 35 All. 80, 87, 18 I C. 30 ; 
Ramalinga v. Xaragana (1922) 49 I.A. 
168, 45 Mad. 480, 68 I.C. 451, ('22) A. VC. 
201 ; Soundararojan v. Arunar/mlamiliHO) 
39 Mad. 136, 33 I.C. 858, (’10) A.M. 1170 
[F.B.l; Jlazarx Lai v. Ram Lai (1925) 
47 All. 746, 88 I.C, 422, (’25) A A. 813. 
The same rule applies where tlie estate 
is imi)artible ; Jagadaniba v. Sarain Singh 
(1923) 2 Pat. 319, 50 I.A. 1, 77 I C. 1041, 
(’23) A.PC. 59 ; Dhanabathi v. Pratap- 
tnall Aqarmlla (1934) 61 Cal. 1056, 154 
I.C. 655, (’35) A.C. 131. 

iv) R 2 jrup Rai v. Sheo Shankar Rai (1945) 


1 A» 287 

(tt>) A>rfar Nath v. Raian Sxnah (1910) 37 I.A. 
I IGl, 32 All. 415, 7 I.C. 648 ; Palam 

Ammal v. M uthvi mkatarharla (1925) 52 
I.A. 83, 48 itad. 254, 87 I.C. 333, (’25) 
A PC. 49 ; Shagun Chand v. Data Ram 
(1927) 49 Ail. 664, 101 I.C. 668, (’27) A.A. 
465, 

ix) Shankersingh v. Galaprhand (1045) Nag. 

444. 

iy) Chokttlinqam v. Mnthvkaruppan (1938) 

Mad 1019, ('38) A.M. 849. 

(r) See (ianapathg v. Sahramanitam (1929) .52 
Mad 845. 851, 122 I.C. 167. (’29) A.M 738. 
('/) (1925) 52 I A 83, 48 Mad 254, 87 I.C. 333, 
('25) A.PC. 49, supra. 

(6) Lalia Prasad v. Sri ^fahadeoj\ (1920) 42 All. 
461, 58 I.C. 067, (’20) A.A. 110. 


S. 325 



410 


HINDU LAW. 


S. 325 effect a separation of the minor from the rest of the family, 
though it may operate as a separation of the father from the 
rest of the family (c). If the Court holds that a division is 
necessary in the interests of the minor and passes a preliminary 
decree for partition, the divided"^status of the minor dates from 
the date of the institution of the suit and not from the date of 
the preliminary decree [d). In a suit for partition filed on 
behalf of the minor son against the father the plaint was 
returned to be presented to the proper Court and, after an 
interval, was re-presented and the Court found the partition 
was beneficial to the interests of the minor. In the interval 
the father executed a mortgage. It was held that the son became 
divided from the father only from the date of re-presentation of 
the plaint and that it could not be contended that the mortgage 
was not binding on the son on the ground that they were divided 
when it was executed. It was also held that the document was 
not affected by the principle of Us pendens (e). In a minor’s suit 
for partition, where another son was born to the plaintiff’s father 
even before the prelimmary decree, it was held by the High 
Court of Patna that the institution of the suit itself effected a 
severance of the joint status and that the minor’s share did 
not suffer a diminution by reason of the birth of another son (/). 
Where a minor plaintiff died during the pendency of the suit, 
it was held by the High Court of Madras, overruling an earlier 
decision of that Court {g), that the question whether the minor 
became separate in status from the date of the plaint was 
dependent on the decision of the issue whether the partition 
would be for the benefit of the minor [h) and that the legal 
representative of the minor was entitled to come on the record 
for the purpose of having that question decided {i). 

According to a Patna decision, his interest will pass to his heirs unconditionally ( j). 
As to the effect on the minor plaintiff’s shares by subsequent births and deaths, see also 
sec. 330 below. 


(2) Partition by agreement . — A partition may also be 
effected by an agreement between the parties [s. 326]. In some 


(c) Ganpalhy v Subramanyam (1929) 52 Mad. 

845, 122 I.C. 107, ('29) A.M. 738. 

(d) v. Puliikurupva (1925) 48 
Mad. 465, 88 I.C. 424, ('25) AM. 717; 
Sr 2 Rartga v. Srini'asa (1927) oO Mad. 
866, 104 I.C. 72, (’27) A.JI. 80, Atul 
Krkhm Roy v. Jjala Nandanh (1035) 14 
Pat. 732 [K.B.], 157 I.C. 53 (*35) A.P. 275 ; 
Ram Singh v. FaHra (1939) Bom. 256. 

{e) Nalhusingh v. Annndrao (1141) Ifag. 652, 
186 I.C. 688, f40) A.N. 185. 


(/) Krishna Lai v. Nandeshviar (1010) 4 Pat. 

L.J. 38, 40-48, 44 I.C. 146, (’18) A.P. 01. 
(?) Chelimy Chefh/ v. Mihamma (1018) 41 Mad. 

442, 42 I.C.'SOO, (’18) A M. 370. 

(^i) Kotayyay. Krishna (1945) Mad. 710 and ne.vt 
case. 

(i) Ranga'-avi v. Nayaratnamma (1934) 67 Mad. 

95 [F.B.], 146 I.C. 769, (’33) A.M. 890. 

(j) Krishna I^al v. Kondoshwar (1019) 4 Pat. L.J. 

38, 46-48, 44 I.C. 140, (’18) A.P. 91. 



PARTITION HOW EFFECTED. 


411 


cases it is stated that a severance of joint status can take place 
only by agreement between the parties or by a decree of the 
Court [s. 329]. But this is a mistaken view {k). As stated 
above, a definite and unambiguous indication by one member 
of his intention to separate and to enjoy his share in severalty 
may amount to a partition. 

(3) Partition by arbitration. — Aja agreement between the 
members of a joint family whereby they appoint arbitrators 
for dividing the joint family properties among them amounts 
to a severance of the joint status of the family from the date 
thereof {1). The mere fact that no award has been made is 
not evidence of a renunciation of the intention to separate (m). 
Where a father refers the family dispute between himself and 
his minor son (represented by his mother) to an arbitrator, 
the award of the arbitrator directing a partition effects a 
severance between the father and the son from its date (n). 

It is a mistake to suppose that there can be no partition 
until there is a division of the joint family property by metes 
and boimds. It is very important to keep the two considera- 
tions quite distinct from each other, namely, partition, that is, 
the severance of the joint status, which is a matter of individual 
decision, and the de facto division of the property, that is, the 
allotment of shares which may be effected by different methods, 
e.g., by private agreement, by arbitrators appointed by the 
parties or, in the last resort, by the Court (o). 

A coparcener does not on insolvency cease to be a member 
of a joint family, nor does the fact that a coparcener has 
alienated the whole or part of his undivided share, effect a 
partition between him and his family (p). 


Ilhistrations. 

(a) A and his brothers B and G aro menibere of a joint Hindu family. A sues 
B and C for partition. After the suit, but before the decree, A dies leaving a widow. 
A *8 share does not pass by survivorship to B and (7, but it descends to his widow as his 


heir, and she as such is entitled to continue the suit : Qirja Bai v. Sadashiv (1916) 43 I.A. 
161, 43 Cal. 1031, 37 I.C. 321, (’16) A.PO. 104. The result would be the same if A, B and 


0 appointed an arbitrator to partition the 
Syed Kasam t. Jorawar Singh (1922) 49 I.A. 


(^') Girja Bai v. Sadashiv (1916) 43 I.A. 151, 
102, 43 Cal. 1031, 1050, 37 I.C. 321, (’10) 
A.PC. 104. 

(0 Syed Kasam v. Jorawar Sin<jk (1922) 49 I.A. 
358, 50 Cal. 84, 68 I.C. 673, ('23) A.PC. 
353 I Krishna v. Balaram (1896) 19 Mad. 
200 ; Subbaraya v. Sadashiva (1897) 20 
Mad. 490 ; Balmukund Lai v. idusantma; 
^loAa/to (1929) 8 Pat. 153, 119 I.C. 817, 
('29) A.P. 164. 

(vi) Ram Kali v. Kluitnman Lai (1920) 61 All. 1, 


property, and A died pending arbitration : 
35S, 60 Cal. 84, 68 I.C. 573, (’23) A.PC. 363. 


Ill I.C. 83, ('28) A.A. 422. 

(«) Shantital Metsaram v. dHunshUal Ketvalram 
(1932) 56 Bom. 595, 139 I.C. 820, ('32) 
A.B. 498, 

(o) (1910) 43 I.A. 151, 161, 43 Cal. 1031, 1049. 37 

I.C, 321, (’10) A.PC. 104, supra ; Mukund 
V. Balkriihna (1Q27) 54 I.A. 413, 419, 52 
Bora. 8, 15, lOo I.C. 703, (*27) A.PC. 224. 

(p) Lakfthmanan Cheltuir v. Srinivasa Iyengar 

(1937) Mad. 203, 166 I.C. 378, (’37) A.M. 
131. 


S. 325 



412 


HINDU LAW. 


Ss. 

325, 326 


(b) A and hia father B are membera of a joint Hindu family A sues B for partition 
B admits that he and A are joint, but alleges that the fact stated in the plaint, namely, 
that B had failed to maintain A is utiirue, and asks that A’s suit should be dismissed 
The suit 13 di^^missed on the ground that the facts alleged by A in his plaint are not proved 
Such a dismissal is quite wrong The institution of the suit operates as a partition 
between A and 5, though the suit is dismissed Kawal Nam v Prabhu Lai (1917) 44 
LA 159. 39 All 496, 40 I C 286, (’17\ A PC 39 See sub-sec (I) above 

326. Partition by agreement.— (2) As regards partition, no 
act done by any member of a joint family can operate as a 
partition, unless it has been done with the intention to put 
an end to his status as a coparcener and acquire a new status, 
that is, the status of a separate owner [q) [s 325] As stated 
by their Lordships of the Privy Council in the leading case 
of Appovier v. Rama Subba Aiyan (r), the true test of 
partition of property according to Hindu law [is] the intention 
of the members of tbe family to become separate owners 
Intention being the real test, it follows that an agreement 
between the members of a joint family to hold and enjoy the 
property in defined shares as separate owners operates as a 
partition, although there may have been no actual division of 
the property by metes and bounds. As observed by the Judicial 
Committee in the case above referred to (s), “ when the 
members of an undivided family agree among themselves 
with regard to a particular property, that it shall thenceforth 
be the subject of ownership, in certain defined shares, then the 
character of undivided property and joint enjoyment is taken 
away from the subject-matter so agreed to be dealt with ; and 
in the estate each member has thenceforth a definite and 
certain share, which he may claim the right to receive and to 
enjoy in severalty, although the property itself has not been 
actually severed and divided.” In such a case the interest of 
each member is divided though the property remains physically 
undivided That interest, therefore, will descend, and may 
be dealt with, as separate property, except where the separating 
member remains joint with his own male issue (t) [s 223 


(?) Appoiierv Rarna Subba Atyan (IddS) 11 M j 
I A 75, 02 93 , Bi/boo Doorga Fershad \ 
Kundun (1874) 13 Beng LR 235 239 I 
1 I A 55 

(r) (1365) 11 II I A 75, 00 

(«) Ibid 

(0 Rajah 'iuranem v VenJama Row (1869) 13 
M I A 113 , Doorga Pernad v Kundun 
(1873) 13 Bcng L K 235, 1 I A 55 
Balkishen Das v Ram Varain (1003) 30 
Cal 738, 30 I A 139 , Ram Pt'r^kad \ 
Bakhpati (1903) 30 Cal 231 253, 30 I A 
1 10 , Parbatx v VanTuhoI iSinr/h (1909) 

31 All 412, 36 I A 71, 3 I C 195 Mahdo 


V A/eAr6an(1891)18Cal 157, 171 A 194 
Sn Raja Viraiara v Sn Raja Viraiafa 
(1807) 20 Mad 256, 24 I A 118 , Raja 
Selrucherla v Raja Setrucherla (1899) 22 
Mad 470 26 1 A 167 , GajajtaUn v 
Oajapathi (1870) 13 MIA 497, 617, 
Bubaji V Kashibai (1880) 4 Bom 157 
Ananla v Damodhar (1889) 13 Bom 25 , 
7e) Prolap v Champa (1886) 12 Cnl 96, 
Sarada v Vmalcania (1923) 50 Cnl 370, 
392 77 I C 450, (’23) AC 485 , Adi Deo 

V Bukharan (1883) 5 All 532 , Baghubir 

V Moti Kunuar (1913) 35 All 41, 17 I C 
766 [P C ] 



PARTITION HOW EFFECTED. 


413 


8ub-s. (4)], A partition, if otherwise genuine, will sever the 
joint statuf5 even if the motive is to defeat the claims of 
creditors (m). Where a member, of the joint family executed 
a sham sale deed in favour of his brother it was held 
that he did not become divided from the family and on his 
death his nephews got the property by survivorship and his 
creditor could not execute a money-decree against the property 
which so devolved on his nephews (v). The filing of a suit is 
only evidence but not conclusive evidence of an intention to 
separate {w). 

The mere fact, however, that the shares of the coparceners 
have been ascertained does not by itself necessarily lead to 
an inference that the family has separated. There may be 
reasons other than a contemplated immediate separation for 
ascertaining what the shares of the coparceners on a separation 
would be. To constitute a partition the shares should be 
defined with the intention of an immediate separation (x). 
For an instance where there was no such intention, see 
Poornanandachi v. Gopalasami (1936) 63 I. A. 436, 38 Bom. L.R. 
1247, 164 I.C. 26, (’36) A.P. 281, and sec. 327 (3). 


(2) An agreement to separate is not required by law to 
be in writing {y). If it is in writing, and clearly indicates on 
the face of it an intention to separate and hold the property 
m defined shares as separate owners, no evidence is admissible 
of the subsequent acts of the parties to alter or control its legal 
effect (a). But where the agreement is not in writing, or, 
where it is in writing, but does not declare on the face of it 
what the intention of the parties was, evidence of subsequent 
conduct of the parties becomes very material in order to 
determine whether there was a partition or not (a). This 
subject is further explained in the next section in another form. 


(») Kuppati Chettiar v. Mana Goundun (1937) 
Mad 1004, 169 I.C. 400 ('37) A.M. 424. 
(ti) Merla Jiajnanna v. Chelikani Jaqannadha 
Rao (1942) Mad. 886, 195 I.C. 1. 68 I.A. 
75 (’42) A.PC, 48. 

(«’) Joala Prasad Singh v. Mat. Chanderjot 
Kuer (1038) 17 Pat. 430, 175 I.C. 783, 
(’38) A.P. 278. 

{x) Palani Amtnal v. Mathmenkalacharla (1925) 
52 I.A 83, 80, 48 Mad. 254, 207*208, 87 
T.C. 333, (*25) A.PC. 49 ; Ramabadra 
Gopa/asitomi (1931) 54 Mad. 269, 129 I.C. 
801, (’31) A.M. 404. 

(y) Rewiin Perspd v. Radha Beebn (1846) 4 M. I. 
A. 137, 108 ; Budha Mai v. Bhagwan Das 
(1891) IR Cal. 302 [P.C.] ; (1909) 31 All. 
412, 422*423, 36 I.A. 71, 3 I.C 195, 


supra : Alamelu v. Balu (1920) 43 Mad. 
840, 26 I.C. 4.55, (’15) A.M. 103. 

{z) Balki^hen Das v. Ram Narain (1903) 30 Cal 
733. 752, 30 I.A. 139 [case of an un* 
ambiguou'^ ikramamah]; Jai Narain v. 
BaijiRn(ft{1928) 50 All 615, 108 I.C 440, 
(’28) A. A 419 : Hira Singh v. Mat. 
Mangfan (1928) 0 Lah. 324, 106 I C 877, 
(’28) A.L. 3 22. 

(a) Doorqa Persad v. Jlundun (1874) 13 Beng. 
L.B 235. 239-240, 1 I.A. 55 [case of an 
ambiguous lArarHani'iA] ; Ram Pershad 
V. LaX-Apaa(1903) 30 Cal. 231. 253, 30 I.A. 
1, 10 [case of an ambiguous decreel 
Choivdkry Ganesh Dutt v, Jeuxich (1904) 
31 Cal. 262, 270, 31 I A, 10 [case ^herc 
there was no writing). 


S. 32ff 



414 


HINDU LAW. 


Ss. 

326,327 


lUustralion. 

A joint Hindu family consisting of six members is entitled to a moiety of certain 
\illagea and to tUree otber properties, namely, *, y and z. All the six members execute 
a deed whereby they divide the three properties, x, y and z, by metes and bounds into 
six parts, each taking one-sixth. As to the moiety belonging to the family in the said 
villages, the deed says : “ But inasmuch as it is not convenient to divide now [that 

is, to divide by metes and bounds] our moiety of the villages, we shall divide every year 
in six shares the produce of them and enjoy it, after deducting the Sirkar’s hist and 
charges on the vUlagea.” The deed concludes with the words “ we have henceforward 
no interest in each other's effects and debts except friendship between us.” The question 
is whether the deed operates as a partition of the family's interests in the villages, regard 
being had to the fact that there was no division of the villages by metes and bounds. 
The answer is that it does, as the effect of the deed is — using the language of the English 
Law merely by way of illustration — that the joint tenancy is severed and converted 
into a tenancy in common. In delivering the judgment of the Judicial Committee, 
Lord Westbury said : “Then, if there bo a conversion of the joint tenancy of an un- 
divided family into a tenancy in common of the members of that undivided family, the 
undivided family becomes a divided family with reference to the property that is the 
subject of that agreement, and that is a separation in interest and in right, although not 
immediately followed by a de facto actual division of the subject-matter. This may at 
any time be claimed by virtue of the separate right .... We find therefore a clear 
intention to subject the whole of the property to a division of interest, although it was not 
immediately to be perfected by an actual partition. It [the deed] operated in law as a 
conversion of the character of the property and an alteration of the title of the family, 
converting it from a joint to separate ownership, and we think the conclusion of law is 
correct, viz., that that is sufficient to make a divided family, and to make a divided 
possession of what was previously undividsd, without the necessity of its being carried 
out into an actual partition of the subject-matter” : Appovier v. Rama Subba Aiyan 
(1866) 11 M.I.A. 75. [It is enough to constitute a partition that there should be a 
division of title : it is not necessary that there should be an actual division of the property]. 

Registration. — A mere agreement to divide does not require registration. But if 
the w riting itself efieots a division it must be registered [bj. Where the plaintiff alleged that 
all the family properties were divided except one item and the defendant denied the 
partition, it was held that an unregistered document evidencing the partition may be used 
for the limited and collateral purpose of showing that the subsequent division of the 
properties allotted to the defendant’s branch was in pursuance of the original intention 
to divide (c). 

327. Evidence of partition and burden of proof.— This 
branch of the subject may be divuded into four parts : — 

1. The clearest case is where the members of a 
joint family divide the joint property by metes and bounds, 
and euch member is in separate possession and enjoyment of 
the share allotted to him on partition. 

2. The next case is of the kind dealt with by the Privy 
Council in Appovier v. Rama Subba Aiyan (d), that is, the 


(b) Tiajangam v. Rajangam (1923) 46 Mad. 373, 
50 T.A. 134, 69 I.C. 123, (’22) A.PC. 266 •, 
Chhotalal v. Bai Mahakore (1917) 41 Bom. 
466, 40 I.C. 83, (’17) A.B. 206. 


(c) Gunpai v. Namdeo (1942) Nag. 73, 106 I.C 
278, (’41) A.N. 207. 

\d) (1866) 11 M.I.A. 75. 



PARTITION HOW EFFECTED. 


415 


case where the coparceners, with a view to partition execute 
a writing whereby they agree to hold the joint property m 
defined shares as separate owners. Such a writing operates in 
law as a partition though the property is not physically 
divided. This is a case where the agreement declares on the 
face of it the intention of the parties to hold the joint property 
as separate owners, and no evidence is admissible of the 
subsequent acts of the parties to control or alter the legal 
effects of the document [s. 326, sub-s. (2)]. 

3. The third case is of the kind dealt with by the Privy 
Council in Doorga Persad v. Kundun (e), that is, the case where 
the agreement is in writing, but the document does not declare 
on the face of it the intention of the parties to hold the joint 
property as separate owners. In such a case, when the question 
arises as to whether the document operates as a partition, the 
intention of the parties is to be inferred from (1) the document 
and from (2) their subsequent acts (/) [s. 326, sub-s. (2)]. 
Where an instrument of partition after giving one member his 
share provides that the rest of the property is to be divided 
in a particular maimer and that the remaining members should 
live like an ordinary imdivided family subject to survivorship, , 
it was held by the Privy Council that there was no partition 
between the other members (y). 

4. The last case is of the kind dealt with by the Privy- 
Council in Ganesh Dutt v. J ewach [h), that is, the case where 
there is no writing at all. In such a case, when the question 
arises as to whether there has been a partition or not, the 
intention of the parties as to separation can only be inferred 
from their acts. In Ganesh Dvit’s case, a Hindu -widow- 
alleging that her husband B has separated from his three 
brothers in Fasli 1295 brought a suit against them to recover 
her husband’s share in the family property as his heir. The 
defence was that B died joint and undivided. The Privy 
Coimcil held that there was a partition as evidenced by the 
following five facts : (1) payment of revenue of certain villages 
belonging to the family, one-fourth in the name of B 
and three-fourths in the names of his three brothers ; (2) 

(e) (1873) 13 Beng. L.R. 236, 1 I.A. 55. I 104 I, C. 20. ('38) A.PC. 281, 

{/) Doorga Persad v. Kvniun (1873) 13 Bong. ( (4) (1904) 31 Cal. 262, 31 I.A 10 ; Durga v. Lai 

L.B. 235, 236, 1 I.A. 55. Bahadur (1929) 4 Luck 138, 112 I C 387, 

(g) Poornanandachi V, Qopalasami Odayar I (’28) A.O. 509. See also Budha Mai v. 

(1936) 63 I.A. 438, 38 Bom. L.B.. 1247, I Bhagwan Das (1891) 18 Cal. ,102 [P.C.J. 


S. 327 



416 


HINDU LAW. 


S. 327 


crediting to B in Fasli 1295 one-fourth, of a share of Rs. 35,000 
recovered by the family undef a decree and three-fourths to 
the three brothers ; (3) payment of rent by a lessee of a factory 
belonging to the family as to one-fourth to B and as to three- 
fourths to the three brothers; (4) 'jpurchase in Fasli 1295 by 
the four brothers of an estate in their names in equal shares ; 
and (5) a suit instituted after B’s death by one of his brothers 
as the adopted son and heir of B to recover a debt due to the 
family ; as to this last fact it is to be observed that if B had 
died undivided, the suit would have beeft,^rought by the 
surviving brothers and the adopted son as coparceyiers . 

In the above case it was also contended on behalf of B’s 
widow that B had become separate from his brother in food 
and tvorship in Fasli 1295, and that that fact was of.dtself 
conclusive proof of partition. As to this contention .their 
Lordships said ; Cesser of commensality is an elemerit Whiph 
may properly be considered in determining the question 
whether there has been a partition of joint family property, 
but it is not conclusive. It is therefore necessary to consider 
whether the evidence in other respects supports or negatives 
the theory that the cesser in this case w'as adopted with a view 
to partition in the legal sense of the word.” Their Lordships 
then proceeded to examine the other evidence in the case, and 
came to the conclusion that the five facts mentioned above 
supported the theory that the cesser was adopted with a view 
to partition. 

Cesser of commensality it is stated above, is not a 
conclusion proof of partition ; the reason is that a member 
may become separate in food and residence merely for his 
convenience (i). Separate residence of the members of the 
jomt family in -different places where they are in service does 
not show separation (j). Similarly, there are other acts which, 
though standing by themselves, are not conclusive proof of 
partition, yet may lead to that conclusion in conjunction with 
other facts. They are separate occupation of portions of the 
joint property (k), division of the income of the joint property (1), 
definement of shares in the joint property in the Revenue or 


< i) Retvun Permd v. Radha Beeht/ (1840) 4 M I 
A. 137, 168 ; Anundeev. Khedoo X>a/(1S72) 
14 M.I A. 412, 422 ; .S«raj v Iqbal 

yarain (1913) 35 All, SO, 40 I A. 40, 
18 1.C. 30 [ditlerence in opinions]. I 

(j) Afoftonlai v. JJam Dayal (1941) 16 Luck. 1 


708, 194 I.C. 61, (’41) A.O. 331 
ik) Riirijeet Sinah v. Gujrat Sing?t (1873) 1 I A. 

9 ; Murari v. Mukund (1891) 15 Bom. 201. 
(i) iSofifitim V. JuggvUiocndTee (1859) 8 M.I A 
60, 86. 



PARTITION HOW EFFECTED. 


417 


Land Registration records {?n), etc. “ The mere fact that the 
shares of the coparceners have been ascertained does not by 
itself necessarily lead to an inference that the family had 
separated. There may be reasons other than a contemplated 
immediate separatidh for ascertaining what the shares of the 
coparceners on a separation would be ” {n). The burden 
however, of proving that the family continued to be joint in 
such a case lies on the person alleging it (o). 


328. Partial partition. — (i) A partition between copar- 
ceners may be partial either in respect of the property or in 
respect of the persons making it (p). 

(2) Partial as to property . — It is open to the members 
of a joint family to make a division and severance of interest 
in respect of a part of the joint estate, while retaining their 
status as a joint family and holding the rest as the properties 
of a joint and undivided family ” (g). But where there is 
evidence to show that the parties intended to sever, then the 
joint family status is put an end to, and with regard to any 
portion of the property which remained undivided the presump- 
tion would be that the members of the family would hold it as 
tenants-in-common unless and until a special agreement to 
hold as joint tenants is proved (r). When a partition is 
admitted or proved, the presumption is that all the property 
was divided and a person alleging that family property, in the 
exclusive possession of one of the members after the partition, 
is joint and is liable to be partitioned, has to prove his case (s). 

{3) Partial as to the persons separating . — Just as a 
partition may be partial as regards the property, so it may be 
partial as regards the persons separating. This case arises 
when there is no general partition amongst all the members of 
the family. 


im) Qajendar v. Hardar Singh (1896) 18 All. 176 ; 
Ram Pershad v. Lakhpati (1903) 30 Cal. 
231, 30 I.A. 1 ; Parbati v. yaunihal Sinyh 
(1909) 31 All. 412, 36 I.A. 71, 3 I.C. 195; 
Nageshar v. Qanesha 11920) 47 I.A, 57, 
42 All. 368, 50 I.C. 300, (’20) A.PC. 46 ; 
Mjwi. Bhagwani v. Mohan Singh (1925) 29 
C.W.N. 1037, 88 I.C. 385, (’25) A.PC. 132. 

(n) Palani Amtnut v. Muthucenkatacharla (1925) 

52 I.A. 83, 85, 48 Mad. 254, 257, 87 
I.C. 333, (’25) A.PC. 49. 

(o) Beti V. Sikhdar Singh (1928) 50 All. 180, 

108 I.r. 721, (’28) A.A. 39. 

(p) Rewan Persad v. Radha Beebp (1846) 4 M 3 

A. 137, 168; Apptit^kr v. Rama Sabba 
Aiyan (1806) 11 MXAT 76, 90 ; 

14 


I V. yallakulantha (1895) 18 Mad. 418 ; 

Sitdnrsanam v. yarasimhulu (1902) 25 

I Mad. 149-197. 

I (?) Ramaiinga v. Narnyana (1922) 49 I.A. 168. 
.| 45 Mad. 489, 68 I.C. 451, (’22) A.PC. 201. 

J (r) J>agadu v. Snkhubai (1923) 47 Bom. 773, 73 
1 I.C. 369, (’24) A.B. 31. dissenting from 

\ Qoi'rishanker v. Attnaram (1894) IS Bom. 

611 ; V (1930) 54 Bom. 

I 616, 127 I.C. 510. (*31) A.B. 97; Beni 

I Persh/id v. Must. Gnrdeti (1923) 4 Lah. 

' 252. 73 I.C. 894, (*23) A.L. 497. 

i I«) Kumarappa Chettiar v AdailaJam Chettv 
I (1932) 55 Mad. 433. 137 I.C. 616, <'32> 

\ A.M. 207. 


Ss. 

327 , 3 ^ 



418 


HINDU LA’iV 


Separation of one coparcener. — W^n one coparcener 
separates from the others, the question arises whether the 
latter are to be deemed to be joimfm^^^'mted or separate. 
This distinction is important, for tfe'^K^ption of the estate 
of a Hindu is -governed by differenwul^Wcording as he was 
joint, reunited, or separate. The view taken in the earlier 
Calcutta cases was that the separation of one member was 
a separation of all, but as regards the non-separating members 
the presumption was that they had reunited immediately after 
the separation [t). On the other hand, the view taken in some 
of the later Calcutta cases (i<), and also in some Madras 
cases (v), was that w'hen one coparcener separated from the 
others, the presumption was that the latter remained joint 
as before. Since then there have been several important 
pronouncements by the Judicial Committee. The result of the 
decisions may be stated as follows : — 


(1) The general principle is that every Hindu family is 
presumed to be joint unless the contrary is proved. This 
presumption, however, does not continue after one member 
has separated from the others. As observed by the Judicial 
Committee, “ There is no presumption when one coparcener 

separates from the others, that the latter remain united 

An agreement amongst the remaining members of a joint 
family to remain united or to reunite must be proved like any 
other fact ” (w). It is open to the non-separating members to 
remain joint and to enjoy as members of a joint family what 
remained of the joint family property after such a partition. 
Ho express agreement is necessary for this purpose. The 
intention to remain joint may be inferred from the way in 
which their family business was carried on after their former 
coparcener had separated from them (x), or it may be inferred 


(t) Jaudubchiinder v. Benodbekarry (1863) 1 

Hyde 214 : Keshub Ram v. Sand Euhore 
(1869) 11 W.K.. 308 , Petatnbur v. hurish 
Chunder (1^71) 15 W.R. 200. ' 

{u) Vpendra v. Copfenaih (1683) 9 Cal. 817' 
Bata V, Chintamam (1886) 12 Cal 262. 

(u) Sutiarsanawv v. yarusiinhnlu (1902) 25 

Mad. 140. 157 , Hau/janatba V yarayana- 
(1908) 31 Mad, 482, t 

Sundarajulu (1016) 31 Mad L J. 472 35 
I.C. 52,(’17)A.M. 722. 

(ti) Bnlabux v. RuAAmafcai (1903) 30 I A. 130 1 
137, 30 Cal, 725 (brothers); Jatti v. Ban- ' 
ivan Lai (1923) 50 I.A, 192, 4 Lah 350 ' 
74 1 C. 462, (’23) A PC. 136 IbrothcTS] , JSai ' 
Krishna v. Ham Krishna (1931) 58 I A 1 
220, 3 All 300, 132 1 C. 6n, ('31) A.PC. 


136 (brothers] ; Babanna v. Parava (1926) 
50 Bora. 815. 100 I.C. 147, ('26) A.B. 68 
(brothers) , Bhimabai v. Gurunaihgoiida 
(1928) 30 Bom. L.K. 850, 114 I.C. 392, (’28) 
A.B. 367 ; Marland v. Radhabai (1930) 
54 Bom. 616, 127 I.C, 510, ('31) A.B. 97 
(brothers). The decision to the contrary 
ID the following cases do not seem to be 
correct. — >Sarju Prasad v. Nand Gopal 
(1927) 2 Lnck. 691, 104 I.C. 316, (’27) 
A.O. 815 ; Musammat iT/«n<i£t .ffuor v, 
Mirtnnjai Baksh (1928) 3 Luck. 220, 105 
I.C. 337, (’27) A.O. 489; Ramchandra v. 
Tukaram{l^2l) 45 Bom. 914, 61 I.C. 761, 
(’21) A.B. 276. 

(z) Palani Am7ml v, MuthutenkaUuharla (1925) 
52 I.A. 83, 48 Mad. 254, 87 I.C. 333. 
(’25) A. PC. 4 9 



PARTITION HOW EFFECTED. 


419 


from other conduct indicating such an intention (^). Thus if 
one brother separates from the other brothers, there is no 
presumption that th“ iatter remain united. It is a question 
of int.f'-^'vit.'^ cKae -rmo/it- he proved like any other fact. For 
an insi-aixce- an instrument of_ partition one 

member separated from the family and yet there was no 
severance of the family, see sec. 327 (3). 

(2) When there has been a separation between the 
members of a joint family, there is no presumption that there 
was a separation between one of the members and his descend- 
ants. Thus if two brothers A and B separate, there is no 
presumption that there was a separation between A and his 
sons, or a separation between B and his sons (z). 

(3) A Hindu father may separate from his sons, and 
the sons may remain joint or he may separate from his 
sons by one wife, and remain joint with his sons by another 
wife. Here again, it is conceived, it is a question of their 
intention to remain joint which must be proved like any other 
fact (a). 

(4) Where in a suit a decree is passed for partition, and 
the question arises whether the separation effected by the 
decree was only a separation of the plaintiff from his 
coparceners or was a separation of all the members of the joint 
family from each other, the decree alone should be looked at 
to determine that question. It is the decree alone which can 
be evidence of what was decreed (6). 

The following are the leading Privy Council cases in their chronological order : — 

(a) Jiam Pershad Singh v, Lakhpaii Koer (1903) 30 I.A. 1, 30 Cal* 231. — In this 
case Sir Andrew Scoble, in delivering the judgment of the Board, said ; “It was contended 
on behalf of the appellants in the present case that although the decree in the suit of 
1868 may have effected a separation quond Tuodan and Tukan, it left the plaintiffs 
united inter se ; and that this might have been the legal effect of the decree is undeniable. 
But here, again, the conduct of the parties must be looked at in order to arrive at what 
constitutes the true test of partition of property according to Hindu law, namely, the 
intention of the members of the family to become separate owners/' 

(b) Balabux v. Pukhmabai (1903) 30 I.A. 130, 137, 30 Cal. 725. — In this case three 
brothers, 0, K and L, owned a shop which had been founded by their father. In 1870 K 
separated from his brothers, took out his share amounting to about Rs. 11,000 and 


(y) flam Pershad Sxngh v. Lakhpaix Koer (1903) 

30 I.A. 1. 30 Cal. 231. 

(z) Sari Baksh v. Babu Lai (192-1) 51 I.A. 103, 

5 Lab 92, 83 I.C. 418, ('24) A PC. 128 ; 
Deputy Commissioner v. Sheo Nath (1927) 
2 Luck. 459, 100 I.C. 689, (’27) A.O. 149. 


1 (<i) But see Sengoda v. Uluthii (1924) 47 itad. 

567, 78 I.C. 927, (’24) A.M. 627. 

1 (6) Palani AmmaL v Mufhuvenfratacharla 

1 (1925) 52 I.A. 83, 87, 43 Mad. 254, 259, 

I 87 I.C. S33, ('24) A. PC. 49 ; Ram Pershad 

I V, lakhpati (1903) 30 I.A. 1, 10, 30 Cal. 

! 231, 253. 


S.328 



420 


HINDU LAW. 


S. 328 started a shop of his own. In 1894 Va son sued O' a widow for possession of property 
held by her as belonging to her husband, alleging that Q and L had continued joint after 
K’a separation, and that on Q'a death ho became entitled to the property by survivorship. 
The widow denied that her husband continued joint with 0. It was held that K having 
admittedly separated himself in 1870, the burden lay on the plaintiff to prove that there 
had been an agreement after K'a separation between 0 and L to remain united or to 
reunite, and that no such agreement having been proved, tfe' plaintiff was not entitled 
to succeed. Lord Davey, in delivering the judgment of the Board, said : “It appears 
to their Lordships that there is no presumption, when one coparcener separates from 
the others, that the latter remain united. . . Their Lordships think that an agree- 

ment amongst the remaining members of a joint family to remain united or to reunite 
must be proved like any other fact.” It was held that K having separated himself in 
1870 and no agreement between G and L to remain united or to reunite having been 
proved, O and L must be deemed to have separated. The above observations were 
explained in ease (f) below. 

(e) Balkrishen Das v. Ram Narain, Sahu (1903) 30 I.A. 139, 30 Cal. 738. — In the 
case a joint family consisted of four cousins. The cousins entered into an agreement 
which stated that defined shares in the whole joint family property had been allotted to 
the several coparceners. The agreement also gave them liberty either to live together 
or to separate their own business. It was held that the agreement defining the sharer 
effected a partition in estate, and that evidence of some of the coparceners having 
continued to enjoy their shares in common would not afiect the tenure of the property 
or their interest in it. It was also held that the clause giving the patties the option of 
being joint or separate was not inconsistent with a separation in estate. 

(d) Jatti V. Banwari Lai (1923) 60 I.A. 192, 4 Lah. 350, 74 I.C. 462, (’23) A.PC. 
136. — In this case a joint family consisted of four brothers. The brothers executed a 
deed by which the joint family property was described as divided between them, and one 
of them was finally paid out. Thereafter the family business was carried on by the 
throe remaining brothers, and the profits of the business were carried in equal shares to 
their separate accounts. In subsequent proceedings the question arose whether the 
remaining three brothers were joint or separate. It was held that the deed coupled with 
the mode in which the accounts were kept showed that the remaining three brothers 
had ceased to be coparceners. 

(e) Hari Baksh v, Babu Lai (1924) 61 I.A. 163, 6 Lah. 92, 83 I.C. 418, (’24) A.PC. 
126. — In this case the Judicial Committee held that the fact of a separation having been 
effected between brothers raises no presumption that there was a separation of the joint 
family constituted by one of the brothers and hie descendants. Thus if a joint family 
consists of two brothers A and E, and each brother has a son, and A and B separate 
there is no presumption that the separation between A and B involves necessarily a 
separation between A and his son or between B and his son. To hold otherwise “ would 
be introducing a novel principle into the law of joint Hindu families governed by the 
law of the Mitakshara.” 

(f) Palani Ammal v. MsUhurenkatacharla (1925) 62 I.A, 83, 48 Mad. 254, 87 I.C. 
333, (’25) A.PC. 49. — In this case their Lordships of the Privy Council observed as 
follows : — “ It is also now beyond doubt that a member of such a joint family [that is, 
Mitakshara family] can separate himself from the other members of the joint family 
and is on separation entitled to have his share in the property of the joint family 
ascertained and partitioned off for him, and that the remaining coparceners, without 
any special agreement amongst themselves, may continue to be coparceners and to enjoy as 
members of a joint family what remained after such a partition of the family property. 
That the remaining members continued to be joint may, if disputed, be inferred from 
the way in which their family business was carried on after their previous coparcener 



PARTITION HOW EPPECTBl). 


421 


had separated from them. It is also quite clear that if a joint Hindu family separates, 
the family or any members of it may agree to reunite as a joint Hindu family, but such a 
reuniting is for obvious reasons, which would apply in many cases under the law of the 
Mitahshara, of very rare occurrence, and when it happens it must be strictly proved as 
any other disputed fact is strictly proved. The leading authority for that last proposi- 
tion is Balabux Ladhuram v. Eukhmabai (c).” 

(g) Bal Krishna v. Bam Krishna (1931) 68 I.A. 220, 63 All. 300, 132 I.C. 613, (’31) 
A.PO. 163 — This was a case of partition between brothers. In this case the previous 
rulings of the Judicial Committee were again considered, and their result was 
summarized as follows ; The general principle undoubtedly is that every Hindu family 
is presumed to be joint unless the contrary is proved. If it is established that one member 
has separated, does the presumption continue with reference to the others ? The decisions 
of this Board show that it does not [see cases (b) and (d) above]. But it is 
equally clear on these decisions that the other members of the family may remain 
joint : it is, again, their Lordships think, a question of their intention, which must no 
doubt be proved.” 

(5) In a suit for partition which proceeds to a decree 
which was made, the decree for a partition is the evidence to 
show whether the separation was only a separation of the 
plaintiff from his coparceners or was a separation of all the 
members of the joint family from each other (d). 

(6) A renunciation by a member of his interest in the 
family property stands on a different footing altogether from 
the case where one member receives his share in the property 
and separates from the other members (e) [s. 264]. In the 
former case, the other members continue joint as before. 

(7) It has been laid down in some cases that where a 
partial partition is proved, the presumption is that there has 
been a complete partition both as to parties and property (/). 
Eecent pronouncements of the Judicial Committee show that 
there is no such general presumption (p). 

(8) Though a partition may be partial by mutual 
agreement of parties, no coparcener can by suit enforce a partial 
partition against the other coparceners. The suit must be 
one for a complete partition [s. 333]. 


329. Partition by decree of Court. — There are some 
decisions which lend colour to the view that where a suit is 
brought for partition, there is no partition or severance of 


(c) (1903) 30 I.A. 130, 30 Cal. 725. 

(d) Piiiani Ammal v. Muthavenkatacharla (1925) 

52 I.A. 83, 48 Mad. 254, 87 I.C. 333, ('25) 
A.PC. 49. 

(e) Satiarsanam v. Nara^imhuli^ (1902) 25 Mad. 

149, 150 ; Parsotam Pas v. Jagannath 
(1919) 41 AIL 361. 50 I.C. 357, (’19) A.A. 
3S1 : Alluri Vmkatapaihi Uaju v. D. 
V^n'-catanarasimha Raju (1936) 03 I..A. 


397, (1937) Mad. 1, 38 Bom, L.E. 1238, 
164 I.C. 1, (’36) A.PC. 264. 

(/) VmdgatuiUia v. Aiyasamy (1909) 32 Mad. 
191, 1 I.C, 408 ; A/nandibai v. Bari (1911) 
35 Bom. 293, 10 I.C. 911 ; Ratnchandra v. 
Tukaram (1921) 45 Bom. 914, 61 I.C. 761, 
(’21) A.B. 276. 

{g) Babantui v. Parauxi (1926) 50 Bom, 815, 
829, 100 I.C. 147, (’27) A.B. 68. 


Ss. 

328,329 



424 


HINDU LAW. 


S. 333 (2) Parties to suit. — (a) The plaintiff in a partition suit 

should implead as defendants: — 

(i) the heads of all branches (r) ; 

(ii) females who are entitled to a share on partition, 
that is, the wife, mother, and father’s mother 
[ss. 315-317] ; 

(iii) the purchaser of a portion of the plaintiff’s share, 
the plaintiff himself being a coparcener ; 

(iv) if the plaintiff himseff is a purchaser from a 
coparcener, his alienor. 

The above are necessary parties and if any of them is not 
joined, the suit is liable to be dismissed. 

(b) It is desirable that the following persons should be 
made parties ; though not necessary parties, they are proper 
parties to such a suit ; 

(i) a mortgagee with possession of the family property 
or of the undivided interest of a coparcener (s) ; 

(ii) simple mortgagees of specific items of the family 
property {s) ; 

(iii) purchaser of the undivided interest of a copar- 
cener (s) ; 

(iv) persons entitled to provision for their maintenance 
and marriage, that is, wddows, daughters, sisters, 
and such like, and disqualified heirs ; 

(v) any person entitled to maintenance from the family (t). 

The plaintiff may also implead any other coparcener or 
any person interested in the family property such as a mortgagee 
or a lessee. Such a person may hnnself apply and be made a 
party. 

lUuslradons. 

(1) If A has two sons 5^ and jSg and grandsons by and in a suit for partition 
by iSj against A and jSg’ grandsons are not necessary parties, though'they may be 
proper parties (u). 

(2) Where the suit is not for partition between all the coparceners inter se but 
only between the two branches of the families, the heads of each branch are the only 
necessary parties (i;). 


(r) Pahaladh v, Luchmunbutty (1869) 12 W. R 
256 ; DlQambar v, Dhanraj (1022) 1 Pat. 
301, 67 I.C. 150, (’22) A. P. 96 
(j) V. Ham (1892) 16 Bom. 608 ; I>uri v. 

Tadepatri (1910) 33 Mad. 246, 4 I.C. 
392. See (3ode of Civil Procedure, 0. 1, 
r. 10 , 

(t) Sadu V. Ram (1892) 16 Bora. 608 ; Jotiram 


Ekoba V. Ramachendra Trimbak (1941) 
Bom. 638, 197 I.C. 788, (*41) A.B. 382. 
See Code of Civil Procedure, O. 1, r. 10. 
(«) Difjambar v. Dhanraj (1022) 1 Pat. 361, 67 
I.C. 166, (‘22) A.P. 06. 

(v) Jii^hamithaT Dos v. Kanshi Prasad (1932) 13 
Lab. 483. 141 I.C. 45, (’32) A.L. 641. 



SUIT FOR PARTITlOJf. 435 

(3) Property to be comprised in a suit for parfkim. — A 
suit for partition may be instituted — 

(i) by a coparcener against the other coparceners ; 

(ii) by the purchaser of the interest of a eoparoaier 
against his vendor and the other coparceners ; 

(iii) against the purchaser of the interest of a copajEceneir 
by the other coparceners ; 

(iv) by the purchaser of the interest of a coparcener 
in one of the several joint family properties against 
the purchaser of the interest of the other eopaa'canets 
in the same property. 

Whether a suit for partition should comprise aB the jeslBt 
family property, or whether it can be brought in respect ef a 
portion only of the property, in other words, whether the siiit 
should be one for general partition, or whether it can he one 
for a partial partition only, depends upon who the parties to 
the suit are — 

(i) The general rule is that where a suit for partition is 
brought by a coparcener against the tkher 
it should embrace the whole family property (u'l . TMs 
rule is subject to certaiu qualificatious. Thus whei® a 
portion of the property is not available for actus! 
partition {x) as being in the p^ossession of a mort- 
gagee iy), or where it is held jointly by the family 
with a stranger {z), a separate suit for jjartitioii may 
be brought iu respect of that j)ortion. iShnilaxly. 
where part of the joint propierty consists of land 
situated outside the jiuisdiction of the Court inwhids 
the suit for partition is brought, a separate suit may 
be brought in respect of that portion in the Court of 
the place where that portion is situated (u), 

(«») Xanabhaiv. (X870) 7 Bom. H.C. | (ff> y, JinaistpanA tlSiW 

A.C. 40; 2'rimbai: v. A'aram (1874) 11 y. AiL 

Bom. H.C. 60 ; V. Amwit(lS9fl) 23 I [wbeiY cW 

Bom. 144 ; JJandas v, PrawmifA U880) 12 > iwxipwty of sh'UU' w llw* \ 

Cal. 566. See Code of Civil Procedure, 

0. 2, rr. 1 and 2 . t«) v.. <lSdT) S H c. S'd .tw 

(c) Pattaraxty v. Audtmuia (1870) 5 Mad. H.C. i 

419. j V. 14 vXl 

Oj) A^nraj/an V. Partrfaranff (1675) 12 Bom, H.C 1 v. Rr,irt 

148 ; KrUtayya v. JVeraiiiynAaw (1900) 23 d. 12. Lettewi 

Mad. 008. [ Karim v. 


Si. s 



426 


HINDU LAW. 


S.333 


Hotel} foi . — A member of a joint family suing bis coparceners 
for partition of family property is bound to bring into 
botebpot, m order that there may be a complete and 
final partition, all family property that may be in bis 
own possession (6), even though it be land situated 
beyond the local li m its of the ordinary original juris- 
diction of the Court in which the suit is brought (c), 
provided it is situated witbui British India (d). 

(ii) The next case is where a coparcener sells his undivided 

interest in one of several properties belonging to the 
coparcenary, and a suit for partition is brought by the 
'purchaser of such interest against his vendor and the 
other coparceners. In this case there is a conflict of 
decisions as to whether he can sue for partition of 
that property alone in which he is interested as a 
purchaser, or whether he should bring a suit for a 
general partition of all the family properties. This 
subject is dealt with in sec. 261 {3). 

(iii) The third case is where a coparcener sells his undivided 

interest in one of several properties belonging to the 
coparcenary, and a suit for partition is brought by 
the other coparceners against the purchaser. As to 
the rights of the other coparceners in such a case, 
see sec. 261 (3). 


(iv) The last case may be put in the form of an illustration. 
A and B are members of a joint family. The family 
property consists of three houses X, Y and Z. A 
sells his interest in house X to C. B sells his interest 
in the same house to D. In such a case D can sue C 
for partition of house X, without asking for a parti- 
tion of houses Y and Z. A and B, no doubt, must 
be joined as defendants ; but the real contest in 
this case is between strangers to the family, namely, 
C and D, and there is no reason why such contest 
should not be determined without reference to the 
remaining property of the family (e). 


(0) HaTnlochun v. RugJtoobtir (1871) 15 W.R. 
Ill ; Lalljeety. Ziajcoomar(1876) 25 W.R. 
3&3a 

(c) Hffri V. Ganpatrav (1883) 7 Bom. 272 : 
Balaram v. Ratnchandra (1892) 22 Bom. 
922, 928. 


(rf) Itamacharya v. Anantacharya (1894) 18 
Bom. 389. 

(«) Su 66 ara 2 u v, VenJeataratnam (1892) 15 Mad. 
234 ; Iburamasa v. Thirvmalai (1911) 34 
Mad. 269, 7 I.C. 659. 



RE-OPENING PARTITION. 


427 


Miscellaneous. 

334. Conversion and Partition.— Conversion of a member 
of a joint family to Mabomedanism (/), or to Christianity [g), 
or to any other religion, operates as a severance of the joint 
status as between him and the other members of the family, 
but not as a severance among the other members inter se. 
It extinguishes the right of survivorship as between the 
convert and his coparceners. He ceases to be a coparcener 
from the moment of his conversion, and is entitled to receive 
his share in the joint family property as it stood at the date of 
his conversion (h). 

A member of a joint Hindu family does not by his conversion forfeit his interest 
in the joint fasnily property. See sec. 97, ill. (a), and the Casta Disabilities Removal 
Act, 1860. 

335. The Partition Act, 1893. — (J) Where in a suit 
for partition, it appears to the Court that a division of the 
property cannot reasonably or conveniently be made, and 
that a sale of the property and distribution of the proceeds 
would be more beneficial lor all the shareholders, the Court 
may, if it thinks fit, on the request of any of such shareholders 
interested individually or collectively to the eictent of one 
moiety or upwards, direct a sale of the property and a 
distribution of the proceeds. 

(2) Where a share of a dwelling house belonging to an 
undivided family has been transferred to a person who is not a 
member of the family, it is open to any member of the family 
who is entitled to a share in the dwelling house to buy the 
share of the transferee at a valuation made by the Court. 

This section reproduces the provisions of secs. 2 and 4 of tb© Partition Act, 1893. 

335A. Covenant to pre-empt— An agreement between two 
brothers at a partition that if one sharer wishes to sell his 
share in the house or if his share was sold in any other way the 
other sharer would be entitled to buy it at a certain amoimt is 
not void under section 14 of the Transfer of Property Act and 
is binding on the representative of the party (i). 

VI.— RE-OPENING PARTITION. 

336. Eights of sons.— A partition may be re-opened 
by an after-born son in the circumstances mentioned in ss. 309 


(/) Oobind v. Abdul (1603) 25 AU. 516. 673 ; Sum 
Pergash v. Munammat Daban Eibi (1921) 
3 Pat. 152, 78 1.C. 749, (’24) A.P. 420. 

Ig) Kbunni Lai v. Oabind (1911) 33 All. S5«, 
38 I.A. 87, 10 I.O. 477, on app. from 29 
All, 487 ; Kulada v. Baripada (1913) 10 


Cal. 407, 17 LC. 257. 

(5) Kulada v. Earipada (1913) 40 (iiL 407, 17 
I. C. 257 : Pella Y enkaUmubbayya v, VeUa 
Venkalramayya (1944) Mad. 33. 

(i) Rataulal v. Bamanujdae (1945) Jfag. 174. 


Ss. 

334436 



428 


HINDU LAW. 


Ss. 

336-339 


and 310 or a person validly adopted to a deceased coparcener 
(who if existing at the time of the partition would have been 
entitled to a share) by his widow after the partition (j). 

Where in a partition between two brothers, one 
brother transferred a portion of his share to the other in consi- 
deration of the fact that the latter had discharged joint family 
debts out of his separate property, the son of the former cannot 
question the transfer (k). 

337. Fraud- — A partition may be re-opened, if any 
coparcener has obtained an unfair advantage in the division 
of the property by fraud upon the other coparceners [1). 

338. Mistake. — Where, after a partition has been made, 
it is discovered that property allotted to one of the coparceners 
did not belong to the family, but to a stranger, or that it was 
subject to a mortgage, the coparcener to whom such property 
has been allotted is entitled to compensation out of the shares 
of the other coparceners, and the partition may, if necessary, 
be re-opened for re-adjustment of the shares {m). 

339. Where a portion of joint property was excluded 

from partition Where a portion of the joint property 

has been excluded from partition by mistake, accident or 
fraud, such portion continues to be the joint property of 
the family, and it must be divided amongst the persons who 
took under the partition (n). It is not necessary in such a 
case to re-open the original partition (o). 


Finality of partition. — Once is the partition of inheritance madCf once is a damsel 
given in marriage ; and once does a man say, ‘ I give * ; these three are by good men done 
<mce for all and irrevocably.'* Manu, IX, 47. Therefore, a partition once made cannot be 
re-opened except in the cases mentioned in the above sections. Where a partition is 
prejudicial to the interests of a minor coparcener, it may be set aside as regards himself ; 
see sec. 308, sub-sec. (2). 

Becovery by a member after partition of a debt due to the family. — A and B are members 
of a joint family. A and B divide the family property and separate. Some time after 
the partition, C, who owed Rs. 2,000 to the family, pays the amount to A alone. B sues 
A to recover hia share of the amount. The suit must be brought within three years from 
the date of the receipt of the amount by A. The article of the Indian Limitation Act, 
1908, applicable to such a case is art. 62, and not art. 127. The reason is that the amount 
recovered by A after partition is not joint family properly and art. 127 therefore does not 
apply (p). 


(j) Sankaalingam Pillai v. Veluchami Pillai 
(iy43) Mad. 809, 205 I.C. 1, (M3) A.M 43. 
(i) AnarUkachari v. KrUhmawami (1938) Mad, 
410, 174 LC. 699, (’38) A.M. 102. 

(0 Moro Vuhvamth v. Ganesh (1873) 10 Bom, 
H.C. 444, 451 ; Lakshman v. Gopal (1899) 
23 Bom. 385. I 

(w) Maruti v. Rama (1897) 21 Bom 333 ; Puru- ! 
ahoUam v. Atmaram (1899) 23 Bom. 385. | 


(n) Jogendra v. Baladeb (1907) 12 C.W.X. 

127; Bhowani v. Juggemath (1908) 13 
C.W.N. 309, 310 ; Lachman v. Samvat 
(1878) 1 All. 643 ; Ganeshi Lai v. Babu Lai 
(1918) 40 All. 374, 45 LC. 4, (’18) A. A. 223 

(o) Celebrook’a Digest, vol. Ill, p. 400. 

(p) Vaidyaiuxtha v. Aiyasainy (1909) 32 Mad, 

191, 1 I.C. 408. 



EFFECT OF PARTITION. 


429 


VII.— EFFECT OF PARTITION. 

340. Devolution of share acquired on partition.— The 
effect of a partition is to dissolve the coparcenary, with the 
result that the separating members thenceforth hold their 
respective shares as their separate property, and the share of 
each member will pass on his death to his heirs. But if a 
member while separating from his other coparceners, continues 
joint with his own male issue, the share allotted to him on 
partition will in his hands retain the character of coparcenary 
property as regards the male issue [sec. 223, sub-sec. (4)]. 

341. Whether separating son can inherit as an heir.— 
(f) It has been held by the High Courts of Bombay and, 
Madras that on the death of a father leaving self-acquired 
property, an undivided son takes such property to the exclusion 
of a divided son. The Chief Court of Oudh has held that they 
both succeed to such property in equal shares [s. 43, nos. 1-3, 
note (3)]. 

(2) If, however, there is no undivided son, the divided 
son is entitled to succeed to such property in preference to his 
father’s widow {q). See illustration. 

{3) If the deceased dies leaving a divided son and a 
divided grandson by a predeceased son, the divided son does not 
exclude the divided grandson , but they succeed to the property 
in equal shares {r). 

Propositions (2) and (3) proceed on the ground that parti- 
tion does not destroy the filial relation nor the rights of in- 
heritance incidental to such relation. This principle has 
been applied in Oudh as regards proposition (1) also, but not 
in Bombay and Madras. 

Hltietralion. 

A and his son S are members of an undivided family. B receives his share of the 
joint property, and separates from A. A then dies leaving a widow and his son B. B, 
as A'b son, is entitled to inherit to A in preference to the widow. The fact that B has 
separated from A does not interfere with his right of inheritance. 

VIII.— REUNION. 

342. Who may reunite. — “ A reunion in estate properly so 
called can only take place between persons who were parties 
to the original partition ” (s). It would appear from this that 


(?) Ramappa v, Sithammal (1879) 2 Mad. 182: 

Balkrishna v. Savitnbai (1879) 3 Bom. 54. 
(r) Marudayi v. Dorasami (1907) 30 Mad. 348. 
(») Balabwi v. Rukhmabai (1903) 30 Cal. 725, 


734, 30 LA. 130, 136 ; Alshay v. TIari 
(1908) 35 Cal. 721 ; Vishvanath v. 

Krishnaji (1866) 3 Bom H.C.A.C, 69; 
Lakskmibai v. Ganpat (1867) 4 Bom. 
H.C.O.C. 150, 106. 


Ss. 

340-342 



430 


HINDU LAW. 


Ss. a reunion can take place between any persons who were parties 
342-'344 .(;o the original partition. The Commentators, however, are 

not unanimous on this point. According to the Mitakshara {t), 
the Dayabhaga (Bengal School), and the Smriti Chandrika 
(Madras School), a member of a joint family once separated 
can reunite only with his father, brother or paternal uncle, 
but not with any other relation, as, for instance, paternal 
grandfather or paternal uncle’s son, through such relation was 
a party to the original partition. According to the Vivada 
Chintamani (Mithila School) and the Mayukha (which is the 
paramount authority in Gujarat, the island of Bombay and 
the northern Konkan), a person may reunite with any relation 
who was a party to the original partition (u). Only males 
can reunite [v). 

No writing is necessary for a reunion. Even persons who 
are parties to a registered deed of partition may reunite by an 
oral agreement {w). 

The leading text on the subject is that of Brihaspati, -whit h runs as follows : — 

“ He who being once separated dwells again through aflection with his father, brother 
or paternal uncle, is termed reunited.” 

The conflict of opinion among the Commentators has arisen from the fact that some 
Commentators regard the list given in the above test as exhaustive, while others regard 
it as merely illustrative. 

343. Effect of reunion. — The effect of a reunion is to remit 
the reunited members to their former status as members of 
a joint Hindu family (x). See sec. 60 and sec. 94. 

The question whether there has been a reunion or not derives its importance from 
the fact that the devolution of the interest of a reunited member is governed by the 
special rules laid down in sec. 60 [Mitakshara law] and sec. 94 [Bayabhaga law]. 

344. Intention necessary to constitute reunion. — The mere 
fact that the parties who have separated live together or trade 
together after partition, does not amount to a reunion [y). 
To constitute a reunion, there must be an intention of the 
parties to reunite in estate and interest ( 2 ). Such an intention 
may be inferred if the parties jointly take a mortgage in which 

{t) flira Singh v. Mat. Munglan (1028) 9 Lah. 

324, 106 I.C. 877. (’28) A. L. 122; Ram. 

Narain Choudhury v. Pan Kuer (1935) 14 
Pat. 268, 62 I.A. 16, (’35) A.PC. 9, 

(U) Basanta v. Jogendra (1906) 33 Cal. 371 
[Mitakshara] ; Vishvanatk v, Krithnan 
(1866) 3 Bom. H.C.A.C. 69 at pp. 73, 74 
[Mayukha]; Balkishen Das v. Ramnarain 
(1903) 30 Cal. 738, 763, 30 I.A. 139 
[Dayabhaga] ; Abkai Chum v. Mangal 
(1892) 19 Cal. 634, 638 [Dayabhaga). 

{V) Ndnuram v. Radhabai (1942) Nag. 24, 


(w) Mahalakshmavima v. jSwr^a7?aroyflfja(1928) 
51 Mad. 977, 117 I.C. 113, (’28) A.M. 1113. 
(O') Prankishen v. Mothoora Mohun (1866) 10 
M.I.A. 403, 406. 

{y) Ram Huree v. Trihee Ram (1871) 16 W.K. 

442 ; Gopal v. Kenaram (1867) 7 W.K. 36. 
(z) BalkrUhen Das v. Ramnarain (1903) 30 Cal. 
738, 753, 30 I.A. 139, 150 ; Jaiti V. Bantcari 
iMl (1923) 60 I.A. 192, 74 I.C. 462, (’22) 
A.PC 



PARTITION CREATED BY SO-CALLED WILL. 


43i' 


it is recited that they are members of a joint family provided 
it is clearly shown that the recital is known to both the parties. 
If there is no such evidence it cannot be inferred that the parties 
have reunited (a). There can be no reunion unless there is 
an agreement between the parties to reunite in estate with the 
intention to remit them to their former status as member 
of a jomt family (6). Smce a minor is not competent to. 
contract it follows, that an agreement to reunite cannot be 
made by, or on behalf of, a minor (c) [sec. 328, sub-sec. (3)]. 

Where the parties lived jointly but there was no reunion the ordinary law of inheri- 
tance applie.s. (6). 

IX.— PARTITION CREATED BY SO-CALLED WILL. 

345. Partition or family agreement created by so-called will.— 
(i) No member of a joint family, although he may be the head 
of the family, has a right to make a partition by will of joint 
family property among the members of the family except 
with their consent. A document, though called a will, 
may not be a will in fact, but one intended to operate from 
the date of its execution ; such a document may be good 
evidence of a family arrangement contemporaneously made' 
and acted upon by all parties, the effect of which may be to 
create a partition of the joint family property (d). 

(2) Similarly no member of a joint family can dispose 
of even his own share by will. A document, though called 
a will, may not be a will in fact, but one intended to operate 
from the date of its execution ; if a member of a joint family 
purports by such a document to dispose of his interest in the 
joint family property then if the disposition is assented to by 
the other members of the family, the document may be good 
evidence of a family arrangement, and effect will be given to 
the disposition so made (e). 

Ilhistrations. 

(1) By a document called a “ will ” the father and head of a joint family recorded a 
division of the joint family property amongst his 3 sons, giving himself no share, but 
allotting a double share to his eldest son. The document recited inter alia that he had 
divided the property among his sons in the proportions mentioned in it, and that in 
anticipation of the execution of the document the sons had been put into possession of 
their shares some 2 months previously. The evidence showed that the division had been 


{n) Oovindoss v. OJJicinl Assignee of Madras 
(1934) 67 Blad. 931, 61 LA. 257, 150 1 C. 1, 
(’34) A.PC. 138. 

(i*) Oohal Pati Datta v. Pashu Pali Nath Datta 
(1942) 1 Cal. 85, 201 I.C. 642, (’42) A.C. 
331 

(c) Balabux v. Rukhmabai (1903) 30 Cal. 725, 


I 734^735, 30 I.A. 130, 136. See also KiUa 

V. Km (1864) S Mad. H.C.A.C. 235. 
t (d) Bnjraj Singh v. Skeodan Singh (1913) 35 
I All. 337, 40 I.A. 161, 19 LC. 82G. 

I (p) Lakshmichand v. Anandi (1920) 53 I.A.-123, 
I 48 All. 313, 95 I.C. 556, (’26) A.PC. 64. 


Ss. 

344,345 



432 


HIKDU LAW. 


S. 345 assented to, acquiesced in and acted upon by the sons for a period of 10 years. It was 
held that the document was not a will but was intended to operate from its date, 
and was evidence of a family arrangement contemporaneously made and acted upon 
by aU the parties : Brijraj Singh v. Skiodan Singh (1913) 35 All. 337, 40 I.A. 161, 19 
I.C. 826. 

(2) Two brothers, having no male issue, and constituting a joint Hindu family 
governed by the Mitakshara, signed a document, described therein as an agreement by 
-way of will. The document provided in effect that if either party died without male 
issue, his widow should take a life interest in a moiety of the whole estate, and that if 
both parties died without male issue, the daughters of each, or their male issue, should 
divide the father’s share. The document was registered. A few days after its execution 
one brother died, and his widow was entered as owner of a moiety of the estate. Subse- 
quently the other brother sued for a declaration that the document was null and void. 
It was held that the document could not operate as a will ; but that, as a co-sharer in a 
Mitakshara joint family with the consent of all his co-sharers, could deal with the share 
to which he would be entitled on a partition, the document was an agreement entitling 
the widow of the deceased brother to a life interest in a moiety : Lakshmichand v. 
Annndi (1926) 63 I.A. 123, 48 All. 313, 95 I.C. 656, (’26) A.PC. 54. 



433 


CHAPTER XVII. 

PARTITION 

JDAYABHAGA LAW. 

Ss. 

346,347 


See sec. 272 and the case there cited. 

347. What is partition.— According to the true notion 
of a Mitakshara joint family no individual member of that 
family, whilst it remains undivided, can predicate of the joint 
property, that he — that particular member — has a certain 
definite share, one-third or one -fourth. Partition, according 
to tbat law, consists in ascertaining and. defining the shares oi 
the coparceners, in other words, it consists in a numerical 
division of the property by which the proportion of each 
coparcener in the property is fixed (s. 322). 

According to the Payabhaga law, on the other hand, each 
coparcener has, even whilst the family remains undivided, 
a certain definite share in the joint property of which he is the 
absolute owner. The property is held in defined shares, though 
the possession is the joint possession of the whole family. 
Partition, according to that law, consists in separating the 
shares of the coparceners, and assigning to the coparceners 
specific portions of the property (/). 

As under the Mitakshara law, so under the Payabhaga law, 
the true test oi a partition lies in the intention of the parties to 
separate (s. 326). In the case of a joint Mitakshara family, that 
intention may be manifested by a mere agreement between 
the coparceners to hold and enjoy the property in defined shares 
as separate owners without an actual division of the property 
by metes and bounds {g) [s. 326]. In the case, however, of a 
joint Dayabhaga family, such an agreement as aforesaid is 
not a sufficient manifestation of the intention to separate ; for 

(!) Dayabh,aga, Chap. I, paraa. 8-9. (1903) 30 Cal. 738, 30 I A. 139 ; Parbaii v. 

<ff) Approvier v. Bo, no Suhba Aiyan (1886) 11 Namihal (1909) 31 All. 412, 38 I.A. 71, 

M.I.A. 75 ; Balknshen Das v. Unm Sarain 3 I.C'. 195. 


346. Scope of the Chapter. — The object of the present 
chapter is to indicate the points of distinction between the 
Mitakshara and the Dayabhaga law of partition. Except 
as to those points, the rules of the Mitakshara law of partition 
apply mutatis mutandis to cases governed by the Dayabhaga 
law. 



434 


HINDU LAW. 


Ss. 

347-349 


according to the Dayabhaga law the joint property is held, 
even while the family remains joint, in defined and specific 
shares. To constitute a partition according to the Daj’’abhaga 
law, there must be something more than such an agreement (h). 
There must be a separation of the shares, and the assignment 
to each coparcener of specific portions of the joint property 
[see s. 279]. 

348. Persons entitled to partition. — Under the Dayabhaga 
law, every adult coparcener, male or female [i) is entitled to 
enforce a partition of the coparcenary property. 

As regards minor coparceners, a suit may be brought on 
their behalf for a partition in the circumstances mentioned in 
sec. 308 above. 


Illustration. 

A, a Hindu, governed by the Dayabhaga school, dies leaving two sons, B and C. 
On A’s death, B and C inherit the property left by A as coparceners. B dies leaving 
a son D. On B's death, D inherits B’a share in the coparcenary property as B’s heir 
and he becomes a coparcener 'vith 0. C dies next leaving a 
I widow If. On C’s death, If inherits O’s share in the coparcenary 

I [ property as his heir, and she becomes a coparcener with D. The 

B C=W position at this stage is that we have a coparcenary consisting 
1 of two members, namely, D and If, the one a male, and the other 

^ a female (s. 277). If sues D tor partition. Is she entitled to do 

so ? Yea, and the Court will allot to her a moiety of the joint property both moveable 
and immoveable. But If, being a widow, is entitled to a widow’s estate only (s. 174) . 
The Court may, therefore, if there is a reasonable apprehension of waste by her of the 
moveable property allotted to her, make sufficient provision in the decree for the prevention 
of such waste, in order to safeguard the interest of the reversioner : Durga Nath V. 
Chintamoni (1904) 31 Cal. 214. [Note that in the ease put above D is the next reversioner, 
he being If ’s husband’s nephew.] 

Note that according to the Jlitakshara law, a female cannot be a coparcener at all 
[s. 217]. 

As to who are coparceners, and what is coparcenary property, according to the 
Bengal school, see secs. 277 and 278 above. 

349. Sons, grandsons and great-grandsons. — Under the 
Dayabhaga law a son is not entitled to a partition of the 
coparcenary property against his father. The reason is that 
a son, according to that law, does not acquire by birth any 
interest in ancestral property. The same rule applies to 
grandsons and great-grandsons [ss. 273-274]. 

__ According to the Dayabhaga law, there can be no coparcenary in the strict sense 
of the term between a father and eons, or between a grandfather and grandsons, or 

(A) Bata V. Gapal (1907) 5 Cal. L. J. 417. 1 (i) Durga Nath v. Chintamom (1904) 31 Cal. 214. 



PABTITION — DAYABHAGA LAW. 


435 


between a great-grandfather and great-grandeonB. See note to see. 277 above. Under 
that law, the father has absolute power of disposal of the property, whether ancestral 
or self-acquired. 

350. Illegitimate sons.—According to all the schools, the 
illegitimate sons of the three regenerate classes [s. 1] are not 
entitled to any share of the inheritance nor to any share on 
partition. They are entitled to maintenance only. 

As to the illegitimate sons of a Sudra see sec. 43, nos. 
1-2-3, on pp. 35-38 above [as to inheritance] and sec. 312 
[as to partition]. 

351. Purchaser. — Where a fractional share in a pro- 
perty which forms part of a joint estate has been sold, the 
purchaser may sue for partition of that property only and for 
possession of the share bought by him, without asking for 
partition of the whole joint estate (j). 

Illustration. 

A dies leaving two eons B and C. The family owns two immoveable properties 
X and y. B sells his one-half share in X to £>. D may sue for partition of X and for 
possession of a moiety thereof, without including property Y in the suit. 

352. Wife. — According to the Mitakshara law, though 
a wife cannot herself demand a partition, she is entitled to a 
share on a partition between her husband and his sons [s. 315]. 
No such question can arise tmder the Dayabhaga law, for 
according to that law, a father is the absolute owner of his 
property whether ancestral or self-acquired, and the sons 
not being entitled to any interest in his property in his lifetime, 
cannot demand a partition against him [ss. 273-275], 

Since a father, according to the Dayabhaga law, has absolute power of disposal over 
his property, whether ancestral or self-acquired, he may in his lifetime divide his pro- 
perty among his sons in such proportions as he likes. He is not bound to divide it equally 
between them, not even the ancestral property (k). 

See the observations of Wilson, J., in Sorolah v. Bhoobun (1). 

353. Mother. — (^) As under the Mitakshara law, so 
under the Dayabhaga law, a mother cannot herself demand a 
partition ; but if a partition takes place between her sons, she 
is entitled to a share equal to that of a son after deducting the 
value of the stridhana, if any, which she may have received 
from her husband or father-in-law (m) [8.316]. As to the Mitak- 
shara law, see sec. 316. 


(j) Barahi v. Debkamini (1893) 20 Cal. 682. 

(k) See Bhattacharya'a Hindu law, 2nd cdn., 

p. 361 ; Mitra’fl Law of Joint Property and 
Partition, p. 320. 


(0 (1888) 15 Cal. 292, 806-307. 

(t»> Eishori v. Moni Mohun (1886) 12 Cal. 165; 
Jogendra v. Fulkumari (1900) 27 Cal. 77, 


Ss* 



436 


HINDU LAW. 


S. 3S3 


(2) If a son dies before partition leaving the mother as 
his heir, the mother is entitled, upon a partition between her 
surviving sons, to receive a share as heiress of her deceased 
son, as well as a share in her own right. The share which she 
is entitled to receive as the heiress of her deceased son is not 
stridhana, for property inherited by a mother is not stridhana 
at all, and it is not therefore to be taken into account in 
determining the value of her share on partition {n) [ill. (a)]. 

(3) A Hindu governed by the Dayabhaga law may 
dispose of the whole of his property, ancestral as well as self- 
acquired, by will so as to deprive his widow of a share on a 
partition between her sons. The reason is that, according to 
that law, a widow has no indefeasible vested right in the 
property left by her husband. But if the whole property be 
willed away, she has, by virtue of her marriage, a right to 
maintenance out of her husband’s property (o) [ill. (b)]. 


(4) Under the Dayabhaga law, a sonless step-mother is 
not entitled to a share on a partition between her step-sons (p) 
[ill. (c)]. 

(5) On a partition between sons by different mothers, 
where there is more than one son of each mother, the rule 
is first to divide the property into as many shares as there 
are sons, and then to allot to each mother a share equal 
to that of each of her sons in the aggregate portion allotted 
to them (2) [ill. (d)]. A mother who has only one son is not 
entitled to a separate share. Her only right is to maintenance 
out of the portion allotted to him (r) [ill. (e)]. 


{6) According to the Dayabhaga law, the share allotted 
to a mother on a partition between her sons is given to her in 
lieu of, or by way of provision for, her maintenance [s. 128 {!)]. 
Such being the case, she is not entitled to a share if a portion 
only of the joint property is divided and the bulk of 
the property remains undivided ; provided that she can be 
adequately maintained from the undivided property (s). 


(n) Jugomohan v. Sarodamoyee (1878) 3 Cal. 149 . 
Poorendranaih v. Uemangini (1909) 36 
Cal 75, 1 1.C. 623. 

( 0 ) Debendra v. Brojendro (1890) 17 Cal. 886 ; 

(1909) 30 Cal. 76, 1 1.C. 623, supra 
(p) Srimati Bmangxni v. Kedamath (1889) 16 


Cal. 758, 765, 16 LA. 115. 

(f) EHsio Bhabiney v. Askutoak (1886) 13 Cal. 
39. 

(y) (1839) 16 CaJ 758. 10 I.A. 115, supra; 

Sorolak V. Bhoobun (1888) 15 Cal. 292, 307. 
(s) Barahi v. Debkamini (1893) 20 Cal. 082. 



PARTITION— DA YABHAG A LAW. 


437 


( 7 ) The mere institution of a suit for partition by a son 
does not entitle the mother to a share in her husband’s estate. 
If the suit is dismissed or withdrawn, she can claim no share. 
It is only if a decree is passed in the suit that she is entitled to a 
share. It follows that if one of the properties is mortgaged 
by the sons, and it is sold at the instance of the mortgagee 
before a decree for partition is passed, she is not entitled to any 
share in that property. Nor is she entitled by reason of the 
sale of the property to a larger share in the other properties. 
Whether she would be entitled to any charge for her mainte- 
nance on the property sold is an open question (t). 

lUuslrationa. 

(a) If diea leaving a widow A, and three aons R, O and n, R, 0 and f> remain joint, 
after aome time D diea inteatate and unmarried. On R'a death, A is entitled to hia abate 
aa his heir [aeo. 88]. A year after D’a death, R sues C and A for partition. The property 
will be divided into four abates of which one will be allotted to R, one to C and two to 
A, one aa D’a heir and the other in her own right : Jugomohan v. Sarodamoyee (1877) 
3 Cal. 149. [According to the Mitakahara law, D'a share would pass to R and C by 
Burvivorahip.] 

(b) A diea leaving a widow R, and two sons, (7 and R. A by hia will baqueath 
the whole of his property, ancestral aa well aa self-acquired, absolutely to C and R. C 
sues R for partition. Is R entitled to a share at such partition ? No ; because the 
whole property has been willed away to the sons. She is entitled to maintenance only 
Debendra v, Srojendra (1890) 17 Cal. 886. [According to the Mitakahara law, A could 
not dispose of ancestral property by will.] 

(c) A dies leaving a widow R who has no son, and two sona, C and R, by a predeceased 
wife. C sues R for partition. Is R entitled to share on partition ? No, for R is not 
the mother, but the step-mother of C and R. [According to the Mitakahara law, R would 
take one-third ; see sec. 316.] 

(d) A dies leaving two widows, R and G, and two sons by R, and three sons by C. 
On a partition between the sous of R and C, the mode of division is first to divide the 
property into 6 shares corresponding to the number of sons. The two sons of R will 
share 2/6 equally with their mother R, each taking 1/3 of 2/6, i.e., 2/16. The three 
sona of 0 will share 3/5 equally with their mother C, each taking 1/4 of 3/5, i.e., 3/20. 
Thus R will take 2/16 and G will take 3/20. 

(e) A dies leaving a widow R, a son G by R, and two sons, R and E, by a predeceased 
wife. G sues R and E for partition. Each of the three sona will take one-third. R 
is not entitled to share the one-third allotted to her son [C] with him as she has only 
one son. But she is entitled to maintenance out of the one-third allotted to her son G : 
Bemangini v, Kedamath (1889) 16 Cal. 768, 16 I.A. 116. 

354. Grandmother. — A grandmother (father’s mother) 
cannot herself demand a partition but — 

{i) if a partition takes place between her sons and 
grandsons, or between her sons and a predeceased 


Ss. 

353, 354 


(() Baldeodas v. Sarojini (1930) 57 Cal, 597, 129 I.C. 408, ('29) A.C. 697. 



438 


HINDU LAW. 


Ss. 

354,355 


son’s daughter, who acquired a share as the heir of 
lier father (u), she takes the share of a son ; 

(ii) if a partition takes place between her grandsons, 
she takes the share of a grandson ; and 

(iii) if a partition takes place between her grandsons and 
great-grandsons, she takes the share of a grandson (v). 

In each case, if she has received any stridhana from her 
husband or her father-in-law, she is entitled to so much only as 
together with what she has already received would make 
her share equal to that of a son or grandson as the case may 
be («c). 


lUusiraiioH. 

A dies leaving a widow S, and a aon X. X dies leaving a widow C, and two aona 
D and Y. Y diea leaving a widow E and a aon 
E. D, who ia A’a grandson, aues F, who ia A’s great- 
grandson, B, his grandmother 0, bis mother, and 
E, hia brother’a widow, tor a partition of A’a property. 
Here the partition is really between D, B’s grandson 
Sind F, B'b great-grandson. Therefore B, as grand- 
mother of D, is entitled to a share, equal to that of her 
grandson B. Similarly 0, as D’s mother, is entitled to 
a share equal to that of her son D. What are the shares 
of B and C ? Aa B ia entitled to a share equal to that of a grandson, the property will 
first be divided into three parts of which B will take 1 /3, D will take 1 /3 and the heirs 
of r, that is, H and f will take 1/3. Similarly as C is entitled to a share equal to that 
of a son and the portion allotted to the sons D and T is 2/3, C will toke 1/3 of 2/3, t.e. 
2/9, D will take 2/9, and F will take 2/9. E is not entitled to share hex son F’s 2/9 with 
him, for according to the Uayabhaga law, a mother who has only one son is not entitled 
to a share on partition (i). 

355. AUotment of shares. — On a partition shares are 
allotted according to the following rules ; — 

(1) on a partition between brothers, they all take 
equally {y) ; 

(2) the share of a brother who is dead is taken by his 
heir, devisee, or assignee ; 

(3) each branch takes per stirpes (that is, according to 
the stock) as regards every other branch, but the 
members of a branch take per capita as regards one 
another. , 

(u) Shaimsoondery v. BiissomWy (1881) 7 l 31 Gal 1065 

(.) Sk%}laeryy.BuesoamnUyiimi)7CBl. U “ (1886) 12 Cal. 16S. 

181 ; Purm Chandra v, Sarojini (1904) I (y) Dayabhaga, chap, ill, sec. 2, para. 27. 


A—B [I /3 as gr. mother.] 
JC=s=C [2/9 as mother.] 

I 

r I 

B [2/9] Y=E [nil.] 
i [2/9] 



P^VRTITIOK — DAYABHAGA LAW. 


439 


Illustration. 

A dies leaving two sons B and 0, a grandson D by O, and two grandsons F and 
(? by a predeceased son E. The property will be 
divided into three portions per stirpes, B taking one- 
third, C taking one-third, and F and 0 together taking 
the one-third belonging to E. F and Q take per 
capita, that is, they share the third belonging to E 
equally between them, each taking one-sixth. D 
takes nothing, for under the Bengal school sons do not 
take any interest in ancestral property during their 
father's lifetime. [If B had died leaving a widow, his 
third would have gone to her (rule 2) ; according to the Mitakshara law, it would have 
passed by survivorship to C and £]. 


A (dead) 


B 


i 


(dead) 


B F 0 


S.355^ 



440 


CHAPTER XVIII. 

GIFTS. 

Ss. 356. “ Gift ” defined. — ■“ Gift consists in the relinquish- 

356 , 357 ment (without consideration) of one’s own right (in property) 
and the creation of the right of another ; and the creation of 
another man’s right is completed on that other’s acceptance 
of the gift, but not otherwise.” 

Mitakehaia, chap. 3, secs. 6 and 6. See sec. 358, and notes “ Acceptance of gift.” 

357. What property may be disposed of by gift. — (i) A 
Hindu, whether governed by the Mitakshara or the Dayabhaga 
school, may dispose of by gift or will his separate or self-acquired 
property, subject in certain cases to the claims for maintenance 
of those whom he is legally bound to maintain [s. 222]. 

(2) A coparcener under the Dayabhaga law may dispose 
of his coparcenary interest by gift or will subject to the claims 
of those who are entitled to be maintained by him [s. 282]. 

A coparcener under the Mitakshara law, however, has no 
such power [s. 258], unless he is the sole surviviug coparcener 
[s. 257], 

(3) A father under the Dayabhaga law may by gift or 
will dispose of the whole of his property, whether ancestral or 
self -acquired, subject to the claims of those who are entitled 
to be maintained by him {z). The reason is that according to 
the Bengal School, “ where property is held by the father [as 
the head of the family], his issue have no legal claim upon 
him or the property except for their maintenance. He can 
dispose of it as he pleases, and they cannot require a partition. 
The sons have not ownership while the father is alive and free 
from defect. Upon his death the property in the sons arises, 
and with it the right to a partition ” (a) [ss. 273, 275]. A father 
under the Mitakshara law has no such power over joint family 
property. He cannot dispose of it, not even his own interest 
therein, by gift or wiU. In certain cases, however, he has a 
special power, by virtue of his position as father, to dispose 
ofj^by gift, a small portion of joint family property [ss. 225 and 

(0 6 M.I.A. 308, I (a) JioniSertojv, i)«roj(1888) 10All. 272, 288, 



GIFTS. 


441 


(4) A female may dispose of ker stridhana by gift or will, 
subject in certain cases to the consent of her husband [s. 143]. 

(5) A widow may in certain cases by gift dispose of a 
small portion of the property inherited by her from her husband 
[s. 18lB (2) (v)], but she cannot do so by will. 

(6) A widow governed by the Mayukha law may alienate 
by gift moveable property inherited by her from her husband, 
though she cannot dispose of it by will [s. 179]. 

(7) The owner of an impartible estate may dispose of it 
by gift or will, imless there be a special custom prohibiting 
alienation or the tenure is of such a nature that the estate 
cannot be alienated (6). 

Marumahkalayyam law. — Aa to the effect of a gift by a husband to his wife and her 
children by him, her children by her former husband being alive at the date of the gift, 
see the undermentioned case (c). 

Aa to wills, see sec. 371 below. 

358. Delivery of possession. — (J) A gift under pure Hindu 
law need not be in writing. But a gift under that law is not 
valid imless it is accompanied by delivery of possession of the 
subject of the gift from the donor to the donee (d). Mere 
registration of a deed of gift is not equivalent to delivery of 
possession ; it is not therefore sufficient to pass the title of the 
property from the donor to the donee (e). But where from 
the nature of the case physical possession cannot be delivered, 
it is enough to validate a gift if the donor has done all that 
he could to complete the gift, so as to entitle the donee to 
obtain possession (/). 

IllustraHons. 

(a) A executes a deed of gift of certain immoveable property to B. At the date 
of the gift the property is in the possession of (7 who claims to hold it adversely to A. B 
sues C to recover possession of the property from him, joining -.4 in the suit as a defendant. 
A by his written statement admits B's claim, C contends that the gift is void, inasmuch 
as A was out of possession at the date of the gift, and possession was not given to B. 
The gift is valid, though possession was not delivered by the donor to the donee. Their 
Lordships of the Privy Council said : *' But it must be observed that in this case the 

(6) Sartaj v. Deoraj (1S88) 10 AU. 272. 15 T.A. (r) Tiwadco v. (1B8S) 7 Bom, 131 ; 

61; Venkata Surya v. of JPunly Da^i v, il/oeAura (18S3) S Cal. 854; 

(1899) 22 Mad. 883, 26 I.A, 88. V. A'llisraNanda (1893) 20 Cal. 

(c) Moithiyan v. (19S8) 51 Mad. 574, 464. 

110 I.C. 480, (’23) A.M. 870. Katiikis v. KanlMya lat (1884) 11 Cal. 121, 

(d) Earjivan v. Narati (1807) 4 Bom. H.C, | H I.A. 218 (where the gift was effected 

A.C. 31 ; Abaji v. (1894) 18 lU>u\, by an ilTccrriuma) ; JoUaram v. i^am- 

088; Venkatachelta V. (1869) IrucA/m (1903) 2? Bom. 31; Rajaram v. 

4 Mad. H.C. 400. See aUo CitiimA (1899) 23 Bom. 131; v. 

V. Bai liamcoovrr (1902) 26 Bom. 44tt. i 17 Bom, 480. 


Ss. 

357,358 



44:2 


HINDU LAW. 


S. 358 


dispute as to the validity of the gift is not hetTpeen the donee and the donor or a person 

claiming under him. The person who disputes it claims adversely to both The 

donor has done all that she can to complete the gift, and is a party to the s^lit, and admits 
the gift to be complete ” : Kalidas v. Kanhaya Lai (1866) 11 Cal. 121, 11 I. A. 218, followed 
in Mahomed Buksh v. Booseini Bibi (g). See also Man Bhari v. Naunidh (h ) ; Muhammad 
Mumtaz v. Zubaida Jan (i). Mahomed Buksh’a case and Muhammad Mumtaz’a case were 
both cases under Mahomedan law which, in this respect, is similar to pure Hindu law. 

(b) A gift of property in the occupation of tenants may be completed by the tenants 
attorning to the donee at the donor’s request : Bank of Hindustan v. Premchand ( j). 

(o) If the donee is already in possession, the gift may be completed by a declaration 
of gift on the part of the donor, and by acceptance on the part of the donee : Bai Kushal 
T. Lakhma (t). 


(cl) A gift among the Hindus of Berar before the application of the Transfer of 
Property Act to that province is invalid unless accompanied by delivery of possession (Z). 

(d) It has been held by the High Court of Allahabad that mere delivery of a 
registered deed of gifts is suflScient to complete a gift {in). This view cannot be supported 
unless the case was one governed by the Transfer of Property Act [see sub-s. (2) below]. 

(e) For the purpose of making a gift of an incorporeal right, the transfer may be 
effected in the same manner as the transfer of a chose in action («). 

(2) As regards Hindu gifts to which the Transfer of 
Property Act, 1882, applies, the rule of pure Hindu law that 
delivery of possession is essential to the validity of a gift is 
abrogated by sec. 123 of that Act (o). Under that Act delivery 
of possession is no longer necessary to complete a gift, nor is 
mere delivery sufficient to constitute a gift except in the case 
of moveable property. A gift under that Act can only be 
effected in the manner provided by sec. 123. That section is 
as follows : — 

(i) “For the purpose of making a gift of immoveable 

property, the transfer must be effected by a regis- 
tered instrument signed by or on behalf of the donor, 
and attested by at least two witnesses. 

(ii) “For the purpose of making a gift of moveable property, 

the transfer may be effected by a registered instru- 
ment signed as aforesaid or by delivery.” 


Gifts by Hitidus to which the. Transfer of Property Act, 1882, acpltea.— -Sec. 123 of the 


Tranfifer of Property Act, 1882, has been applied 

(p) (1888) 15 CaT 16 I.A. Sll 

(ft) (1882) 4 All. 40, 45. 

(i) (1889) 11 All. 460, 475-476, 16 I A. 205. 

(j) (1868) 5 Bom. H.C. O.C.83. 

(I-) (1883) 7 Bom. 452. 

Chandrabhaga v. Anandarao (103d) Nag. 293. 

(?n) Bahmkund v. Bhagwan Das (1894) 10 All. ' 
185. ) 

(rt) Chalatnanna v. Suhbamma (1884) 7 Mad. 23 > 
[gift of a nibandha or corrody) ; KTiurshedji i 
Pestonji U888) 12 Bora. 573 [gift of 
Government Promiesory Notes]. I 

io) Eatyanasundaram v. Earuppa (1027) 54 
I.A. 89. 60 Mad. 193, 100 I.C. 10.5, (’27) ! 

A PC. 42; Atmaram v Vartian (1025) ’ 


gifts by Hindus by sec. 129 of that Act. 


49 Bom. 388 [F.B.], 87 I.C. 490, ('26) A.B. 
210 ; Dkarmodas v. Sistarini (1887) 14 
Cal. 446 ; Balbhadra v, Bhotrani (1907) 
34 Cal. 853 ; Bai Rambai v. Bat Mani 
(1899) 23 Bom. 234 ; liamamirtha v. 
Gopala (1896) 19 Mad. 433; Alabi 
Mussa (1901) 24 Mad. 513, 622; Phul- 
chand V. Lakkhu (1903) 25 All. 358 ; Lain 
Singh V. Out Narain (1923) 45 All. 115, 
08 I.C. 798, (’22) A. A. 467 [F.B.] ; 
llartganadha v. Bhaghirathi (1906) 29 
Mad. 412, 415. But see Z’looBahhai v. 
yacoofeftai (1905) 29 Bom. 267. See also 
Sadik Husain Khan v. Hashxm Ali Ehan 
(1916) 43 I.A. 212, 222, 223, 38 All. 627, 
647, 36 I C. 104, (*10) A. PC. 27. 



GIFTS. 


443 


Tho Act came into force on the firat day of July 1882. It extended in the first instance 
to the whole of British India except the territories respectively administered by the 
Governor of Bombay in Council, the Lieutenant-Governor of Punjab, and the Chief 
Commissioner of Burma. It was subsequently extended to the Bombay Presidency on 
the first day of January 1893, and, on the same date, to the area included within the 
local limits of the ordinary civil jurisdiction of the Recorder of Rangoon. The result is 
that the provisions of sec. 123 of the Transfer of Property Act apply to all gifts made 
by Hindus in the territories to which the Act applies since the date on which the Act 
came into force in those territories. 

Writing . — Writing is not necossary under Hindu law for the validity of any 
transaction (p). Therefore, in cases of gifts by Hindus to which the Transfer of Property 
Act does not apply, a gift may be made orally or in writing. 

Acceptance of gift. — “ A gift,” according to the Mitakshara, “ consists in the relin- 
quishment of one’s own right and the creation of the rights of another. The creation 
of another man's right is completed on that other's acceptance of the gift, but not Otherwise- 
Acceptance is made by three means, mental, verbal, or corporeal. In the ease of land, 
as there can be no corporeal acceptance without enjoyment of the produce it must be 
accompanied by some little possession, otherwise the gift, sale, or other transfer is not 
complete" (q). 

The effect of sec. 123 of the Transfer of Property Act is to dispense with delivery of 
possession (r). But the Act does not dispense with the necessity of acceptance as is clear 
from see. 122. .The mere execution of a registered deed by the donor is no proof of 
acceptance by the donee. Acceptance must be proved as an independent fact. 

Oifts and bequests to unborn persons. — See secs. 360 and 373. 

359. Gift to unborn person: Rule apart from statute.— 
Under pure Hindu law, a gift cannot be made in favour of a 
person who was not in existence at the date of the gift (s). This 
rule still apphes to cases to which the provisions of the three 
Acts mentioned in the next section (sec. 360) do not apply. 

For exception to this rule, see notes to sec. 372. As to bequests, see sec. 372. As 
to trusts, see sec. 386. As to gift to an idol, see sec. 410. 

360. Gift to unborn person ; Rule as altered by statute. — (i) 
The rule of Hindu law stated in sec. 359 that a gift cannot be 
made in favour of an unborn person has been altered by three 
Acts, namely, the Hindu Transfers and Bequests Act, 1914, 
the Hindu Disposition of Property Act, 1916, and the Hindu 
Transfers and Bequests [City of Madras] Act, 1921. The rule 
as altered by these Acts may be stated as follows : — 

Subject to the limitations and dispositions contained in 
Chapter II of the Transfer of Property Act, 1882, no gift is invalid 


(p) Balaram v. Appa (1872) 0 Bom. H. C. 121 , 
EurpuTshad v. Sheo Dyal (1876) 26 W. ft. 
55, 3 I.A. 259. 

(9) Mitakshara, chap. Hi, aeca. 5 and 0 , W. 
MacN., 212, 217. 

(r) Dhtirmodas v. Nuiarini (1837) 14 Cal. 446, 
448. 


(«) Tagore v, Tagore (1872) 9 Beng. L. R 377, 
397, 400 I.A, Sup. Vol. 47, 67, 70; jJat 
iUamu6ai v. Dossa (1891) 15 Bom, 443; 
Sree Raja Venkata v. Sree Rajah Sxtranmx 
(1903) 31 Mad. 310. 


Ss. 

358^360 



444 


HINDU LAW. 


S. 360 by reason only that any person for -whose benefit it may have been 
. made was not born at the date of the gift. 

This rule, howevei, is not of universal application, hut is 
confined to the following transfers, by way of gift 

(1) to transfers executed on or after the 14th February, 1914, 
by Hindus domiciled fa the province of Madras except 
the City of Madras, and, in the case of transfers executed 
before that date, to such of the dispositions thereby made 
as are intended to come into operation at a time which 
is subsequent to that Act : Hindu Transfers and 
Bequests Act, 1914 ; 

(ii) to transfers executed on or after the 20th September, 1916, 
by Hindus m any part of British I ndia except the province 
of Madras : Hindu Disposition of Proqyerty Act, 1916 ; 

(iii) to transfers executed on or after the 27th March, 1921, 
by Hindus domiciled tvithin the limits of the ordinary 
original civil jurisdiction of the High Court of Madras, 
and, in the case of transfers executed before that date, to 
such of the dispositions thereby made as are intended to 
come into operation at a time which is subsequent to the 
14th February, 1914 : Hindu Transfers and Bequests 
[City of Madras'\ Act, 1921. 

(2) The Umitations and provisions contained in Chapter 
II of the Transfer of Property Act, 1882, are discussed in secs. 
383 to 387 below. For the present they may be summarised as 
follows ; (a) if the gift to an rmbom person is preceded by a 
prior disposition, the gift shall be of the whole residue ; (b) the 
gift shall not offend the rule against perpetuities ; (c) if a gift 
is made to a class of persons with regard to some of whom it 
is void under (a) or (b), the gift fails in regard to those persons 
only and not in regard to the whole class ; (d) if a gift to an 
unborn person is void under (a) or (b), any gift intended to 
take effect after such gift is also void. 

Bistory of the legislation on the subject . — It -was held by the Privy Council in the 
Tagore case in 1872 that a Hindu cannot dispose of hie property by gift in favour of a 
person who was not in existence at the date of the gift [sec» 359], nor could he dispose of 
his property by will in favour of a person who was not in existence at the dal© of the 
death of the testator [sec. 372]. The first enactment which validated gifts and bequests 
in favour of uubourn person was the Hindu Transfers and Bequests Act, 1914. This 
was an Act of the Madras Legislature. It applied in terms to the whole of the province 
of Madras and was intended so to apply. It was followed by Hindu Disposition of 



GIFTS. 


445 


Property Act, 1916, which was an Act of the Imperial Legislature. It applied to the 
whole of British India except the province of Madras for which legislation had already 
been made by the local Act, of 1914. After the Act of 1916 was passed, the High Court 
of Madras held as to the Madras Act of 1914 that the local Legislature had no power to 
take away the right of a Hindu domiciled within the local limits of the ordinary original 
civil jurisdiction of High Court of Madras to be governed by the Hindu law as it stood 
when the High Courts Act, 1861, was passed. The fact, however, was that the Hindu 
law as it then stood did allow gifts and bequests in favour of unborn persons, and the 
Tagore case had misinterpreted that law. This led to the enactment by the Imperial 
Legislature of the Hindu Transfers and Bequests [City of Madras] Act, 1921. This Act 
extends in effect the local Act of 1914 to Hindus domiciled in the City of Madras. It 
also validates gifts and bequests made by Hindus domiciled in the City of Madras 
subsequent to the 14th February 1914, being the date on which the local Act of 1914 
came into force. The result is that as between them the Acts of 1 914 and 1921 apply 
to the whole province of Madras, and the Act of 1916 applies to the rest of British India. 

Gifts and bequests, however, in favour of unborn persons, could only be made 
subject to certain limitations and provisions. These limitations and provisions were 
not the same under the three Acts. To attain uniformity the three Acts were amended 
by the Transfer of Property (Amendment) Supplementary Act, being Act 21 of 1929, 
which came into force on the 1st April 1930. These limitations and provisions are 
more or less the same both in the case of gifts and of wills, and they are dealt with to- 
gether in secs. 383 and 384. Except as to these, we have dealt separately with gifts and 
bequests in favour of unborn persons, not because there is any material difference between 
them, but because a separate treatment must conduce to a clear understanding of the 
subject. As to bequests to unborn persons, see sec. 373. 

361. Reservation of life interest. — A gift of property is not 
invalid because the donor reserves the usufruct of the property 
to himself for life (t). 


Illustration. 

A executes a registered deed of gift of seven villages to her daughter, and delivers 
immediate possession of four villages to her. As to the remaining three villages the 
condition is that she wiU retain possession and enjoy the profits thereof during her life- 
time, but will not have power to make any transfer in respect thereof. The gift is valid 
not only as regards the four villages, but as to the other three also. There being an 
intention to effect a transfer in praesenti of the proprietary interest in all the seven villages 
and to vest the same in the donee, the reservation of the right to enjoy the usufruct 
on the three villages during her own life-time does not make the gift invalid as to the 
three villages: Lallu Singh v. Gur Narain (1923) 46 All. 116, 68 I.C. 798, (’22) A.A. 
467 [F.B.]. 


362. Condition restraining alienation or partition. — Where 
property is given subject to a condition absolutely restraining 
the donee from alienating it {u), or it is given to two or more 
persons subject to a condition restraining them from parti- 


(t) Lallu Singh v. Qur Naraxn (1923) 45 All. 

115, 68 I.C. 708, (’22) A.A. 467 [F B ]. 

(u) Anantha v. I{a<ja Muthu (1882) 4 Mad. 200, 

AH Rasan v. Dhirja (1882) 4 All. 518 ; 
Bhairo v. Parmeahri (1885) 7 All 516 
[case of a deed of compromise]; Muthu^ 


kmnara v. Anthony (1915) 38 Mad. 867, 
24 I.C. 120 ; Bukminxbai v. Laxmibai 
(1920) 44 Bom, 304, 56 I.C. 361, (’20) 
A.B. 73 [Agiahar gift]. See Transfer 
of Property Act, b. 10. 


Ss. 

360.362 



446 


HINDU LAW. 


Ss. 

,362-366 


tin ning it {v), the condition is void, but the gift itself remains 
good [s. 393]. 

llluslration. 

A makes a gift of property to B subject to the condition that he shall not alienate 
the property, but shall only enjoy the profits thereof. B is entitled to receive the pro- 
perty and dispose of it at his pleasure as if there were no such condition. 

See in this conneotioji the Crown Grants Act, 1895. Where a grant is made of laud 
by the Grown, the land is to be held subject to the limitations and rostrietious imposed 
by the grant. 

363. Revocation of gift. — gift once completed is binding 
upon the donor, and it cannot be revoked by him (w), unless 
it was obtained by fraud or undue influence (x). 

Where a gift is made by a Hindu widow, the burden lies upon the donee to show 
that she made the gift which a full understanding of what she was doing and was aware 
of her rights (y). 

364. Gift in fraud of creditors. — A gift made with intent 
to defeat or defraud creditors is voidable at tbe option of the 
creditors {z). 

365. Bonatio mortis causa. — A donatio mortis causa, that 
is, a gift made iu contemplation of death, is recognized by the 
Hindu law (a). 

366. Trusts.— (f) Trusts are no more strange to the 
Hindu than to the English system of law [b). Before the 
enactment of the Indian Trusts Act, 1882, a trust could only 
be created by delivery of possession, or its equivalent (c), to 
trustees as in tbe case of a gift. But a Hindu trust governed 
by the Act can only be created in the manner provided by sec. 
5 of that Act. That section is as follows ; — • 

(i) “ No trust in relation to immoveable property is valid 

unless declared by a non-testamentary instrument 
in writing signed by the author of the trust or the 
trustee and registered, or by the will of the author 
of the trust or of the trustee. 

(V) Harayanati v. Kannan (1884) 7 Mad. 315. ; (a) Visalatchun v. Subbu (1871) 6 Mad. H.C. 

Transfer of Property Act, 8. 11 . 1 270; Bhaskar y . Saraswatibai (1893) 17 

!ri-) Qanga Baksh v. Jagat Bahadur (1896) 23 I Pom. 480, 495. 

Cal. 15, 23 I. A. 153 ; Rajaram v. Ganesh 
(1899) 23 Bora. 131. 

(z) Manigavri v. yarandas (1891) 15 Bom. 549. 

(y) Deo Kuar v. Man Kuar (1894) 17 AU. 1, 21 
I A. 148 [gift set aside — suit brought 
eight years after date of gift — document 
not explained to donori. 

(?) yoftir V. Mota (1880) 2 All. 891; Boi 
Biehenchand v. MusiUTnat Asmaida Koer 
(1884) 6 AU. 560, 11 1, A. 164. 


(5) Tagore v. Tagore (1872) 9 Beng. L.B. 377, 
401-402 I.A. Sup. Vol. 47-71-72; Sri 
Sri Sndhar Jew v. Manindra Kumar 
Mitra (1940) 2 Cal. 285, 195 I.C. 475, (’41) 
A.C. 272. 


(c) Gordhandas v Bai Ramcoover (1902) 26 



GIFTS. 


447 


(ii) “ No trust in relation to moveable property is "valid 
unless declared as aforesaid or unless tlie owner- 
ship of the property is transferred to the 
trustee ” (d). 

{2) A trust cannot be created except in favour of a 
person to whom a gift or bequest can be validly made. Nor 
can a trust be made a means of effecting a course of devolution 
opposed to the Hindu law of property and succession. In 
other words, trusts are to be regarded as gifts alike as to the 
property which can be transferred as to the persons to whom 
it can be transferred (e). 

There is some authority for the proposition that under the Hindu law, in cases not 
governed by the Indian Trusts Act, 1882, a mere declaration of trust, not amounting to 
a legal transfer, can be enforced in favour of the object of the trust (/). 


(d) Ranganadha v. Bhaghiraihx (1906) 29 Mad. 

412, 416. 

(e) Kahandas Narrandas, in re (1881) 5 Bom. 

1.64, 173-174 ; Tagore v. Tagore (1809) 9 
Beng. L. R. 377, 401-402 I.A. Sup. Vol. 
47, 71-72 ; Rajender V, Shamchund (1881) 


6 Cal. 106. 

(/) Chatti V. Pandrangi (1884) 7 Mad. 23; 
Birbai v. Jan Mahomed (1883) 7 Bom. 
229 ; Bhaslcar v. SaraeKotibai (1893) 17 
Bom. 486, 498-601 ; Gordhandas v. Bai 
Ramcooier (1902) 26 Bom. 449, 472. 


S.366 



448 


CHAPTER XIX. 
WILLS. 


S. 367 367. Persons capable of making wills. — Subject to the- 

provisions hereinafter contained every Hindu who is of sound 
mind, and not a minor, may dispose of his property [s. 371] 
by will(sr). 

Burden of •proof. regards the onus of proof in cases of wills the rules of law are- 
quite clear. The first rule is, that “ the onus probandi lies in every case upon the party 
propounding a will, and he must satisfy the conscience of the Court that the instrument 
80 propounded ia the last will of a free and capable testator.** The second rule is, that 
“if a party writes or prepares a will under which he takes a benefit, or if any other 
circumstances exist which excite the suspicion of the Court, and whatever their nature 
may be, it is for those who propound the will to remove such suspicion, and to prove 
affirmatively that the testator knew and approved the contents of the will, and it is 
only where this is done that the onus is thrown on those who oppose the will to prove 
fraud or undue influence, or whatever they rely on to displace the case for proving the 
wUl(A).” 

Wills unknown to pure Hindu law. — ^The idea of a will is wholly unknown-to the pure 
Hindu law. Bub the testamentary power of Hindus has now long been recognized, and 
must be considered as completely established (i) . In the undermentioned case ( j) the 
Judicial Committee said ; “ It is too late to contend that, because the ancient 
treatises make no mention of wills, a Hindu cannot make a testamentary dispoJaSbn 
of his property. Decided cases, too numerous to be now questioned, have determined 
that the testamentary power exists, and may bo exercised, at least within tho limitj^hich 
the law prescribes to alienation, by gift ijiter vivos.'' 

Joint will. — See note below “ A document described as a will may not be a will.” 

To whom property may be beyueaihed. — There is no objection to a bequest" in favour 
of an infant, or an idiot, or a person who is disqualified from inheriting fiy' reason of 
some personal disability (^). As to a bequest to an unborn person, see secs. 372 — 373 
below. 


Minor's will. — A Hindu who has not attained majority within the meaning of the 
Indian Majority Act, 1875, sec. 3, is not competent to make a will. See also the Indian 
Succession Act, 1925, sec. 2 (c), where the expression “ minor ” is defined. 


A document described as a will may not be a will . — The expression “ will ” is defined in 
the Indian -Succession Act, 1925, as the legal declaration of the intention of a testator 
vnth respect to his property which he desires to be carried into effect after his death. A 


document by which no property is disposed of, but which merely gives an authority to 
adopt, though described by the testator as a will, is not a'Will(?), Similarly, since a 
minor is not competent to make a will, any declaration by him with respect to his property 


(sr) Hardwari v. Gomi (1911) 33 All. 525, 9 I.C. 
1017 ; Bai Oulab v. Thakorelal (1912) 36 
Bom. 622, 17 I.C. 86; KrishnamacJiariar 
V. Kriihnantachariar (1916) 38 Mud. 166 
19 I.C. 452, (’15) A.M. 815. 

(A) Lachho Bibi v. Gopi Narain (1901) 23 AH. 
472 ; Shamu Charan v. Kheltromoni Dusi 
(1900) 27 Cal. 621, 27 I.A. 10; Sukh Dex 
V. Kedar Nath (1901) 23 All. 405, 28 I.A. 
186 ; Raak Mohini v. Umesh Chunder 


(1898) 25 Cal. 824, 25 I.A. 109. 

(i) Soorjeemonet/ Doasey v. Denobundoo MulUck 

(1862) 9 M.I.A. 123, 136. 

(j) Bur Pertab v. Ra)ender Perlab (1867) 12 

M.I.A. 1, 37-38. 

(fc) Kooldeb Naratn v. Wooma (1864) Marshall 
357 

(0 Juyannatha v, Kunja (1921) 48 I.A. 482, 
44 Mad. 733, 64 I.C. 458, (’22) A.PC. 162. 



WILLS. 


449 


cannot be said to be " legal ” declaration, and tlie document comprising the declaration, 
though described as a will, is not a will at all (m). 

Regislration in Booh not appropriate for wills . — Where it appears from the terms of 
a document and the circumstances in which it was executed that it is a will, the fact 
that it is registered in Book IV (Miscellaneous Begister) kept under the Begistration 
Act, 190S, instead of in Book III, is insufficient to outweigh those terms and those 
circumstances (ji). 


368. What property may be bequeathed by will. — (I) A 
Hindu cannot by will bequeath property which he could not 
have alienated by gift inter vivos [s. 357] ; nor can he by will 
so dispose of his property as to defeat the legal right of his 
wife or any other person to maintenance (o). 

See Indian Succession Act, 1925, Schedule III, paras. 1 and 2. 


(2) As regards property which a Hindu can dispose of 
by will, the following propositions are to be noted ; — 

(i) According to all the schools a Hindu may dispose of by 

will his separate or self-acquired property (p) [s. 222]. 

(ii) According to the Dayabhaga law, a father may dispose 

of by wiU all bis property, whether ancestral or self- 
-acquired [s. 274]. Similarly a coparcener may 
dispose of b}^ will the whole of his interest in the joint 
family property (q) [s. 282]. 

According to the Mitakshara law, no coparcener, not 
even a father, can dispose of by will his undivided 
coparcenary interest (r) even if the other coparceners 
consent to the disposition. The reason is that “ at 
the moment of death the right of survivorship 
[of the other coparceners] is in conflict with the right 
by devise. Then the title by survivorship, being the 
prior title, takes precedence to the exclusion of that 
by devise ” (s). A sole surviving coparcener may, 
however, bequeath the joint family property as if it 
were his separate property {t). A ^vill operates from 


(m) Koniapalli V ijayarainam v. Mandapaka i 
Siidarsam Rao (1925) 52 I. A. 305, 48 
Slad. 614, 89 I.C. 733, (’25) A.PC. 196. 
m) Krishna Rao v. Sundara Siia Rao (1931) 

68 I. A. 148, 54 Mad. 440. 131 I. C. 318, 
(’31) A.PC. 109. 

(o) Soixainn v. J ugg\itsoondree{\%tS'd) 8 M.I. A. 60- 
8S; Beer Pertab v. Rajender Perlab (1867) 

12 M.I.A. 1, 38 ; PromUhanaih v. Nagen- 
drabala (1908) 12 C.W.N. 808. 
ip) (1867) 12 M.I.A. 1, 38, supra. 

(g) Nagaluichme v. Qopoo (1856) 6 M.I.A. 309, 
344 ; Rani Sartai v. Deorai (1888) 10 All. 
272, 288, 15 I.A. 51. 

(r) Villa Butten Y nmmamm'i (1874) 8 Mad. 
H.C. 6 ; Lakshman v. Ramchandra (1881) 

5 Bom. 48, 7 I.A. 181 ; Harilal v. Bat 

15 


Manx (1905) 29 Bom. 351 ; Lalta Prasad 
V. Sri jMahadsnji (1920) 42 All. 461, 58 
I.C. 667, (’20) A.A. 116. 

(«) Villa Buiten v. Tametiamma (1874) 8 Mad. 
H.C. 6 ; Lakshn i Chand v. Antiandi (XQ2.Q) 
63 I.A. 123, 48 All. 313, 95 I.C. 566, 
(’26) A.PC. 54 ; Bhikhahai v. Purskottam 
(1926) 50 Bom. 558, 96 I.C. 421, (’26) A.B. 
378 [will though made Avith consent of son 
held void] ; Anandrao v. Administrator 
General of Bombay (1896) 20 Bom. 460 
explained ; Subbarami v. RamamnM (1920) 
48 Mad. 824, 59 I.C. 681, (’20) A.M. 637. 

{<) Nagalutchmee v. Qopoo Nadaraja (1850) 6 
M.I.A. 309 \ Narottam V. Narsandas (1866) 
3 Bom. H.C.A.C.6. 


Ss. 

367,368 



450 


HINDU LAW. 


« 5*58 


tte date of the testator’s death ; therefore, if a copar- 
cener subsequently comes into existence such as a 
son adopted by him (u), a son subsequently born to 
him (v), including a posthumous son (w) or the 
posthumous son of a deceased coparcener, the will, 
so far as it deals with the coparcenary property, 
will be inoperative and the property will pass to 
bim by survivorship. But if the son whether natural 
born or adopted dies in the lifetime of the testator, 
the win stands, and the devisee is entitled to the 
property given to him by the will (a;). 

Having regard to the consensus of judicial decisions, 
an arrangement in a will made before the adoption 
whereby the widow of the adoptive father is to enjoy 
his property during her lifetime, or for a less period, 
that arrangement being consented to by the natural 
father before the adoption, is to be regarded as valid 
by custom. But an agreement or consent by the 
natural father is not efiectual in law or by custom to 
validate any other disposition of the property in a 
will which is to take effect after the adoption and will 
curtail the rights of the adopted son as co-sharer. 
Consequently a will by which a sole surviving 
coparcener gave part of the coparcenary property 
to his intended adopted son, part to his widow for 
life, part to kindred, and part to charity is not 
binding upon the adopted son, although before 
the adoption took place the natural father executed 
a deed by which he consented to the provisions 
of the will and gave his son in adoption subject 
thereto (y). See s. 374. 

Though a father may dispose of a small portion of 
ancestral moveables by way of gift, he cannot do so 
by will {z) [ss. 225, 226]. 


(u) Venkaianarayam v. Subhamal (1915) 43 
I. A. 20, 39 Mad. 107, 32 I.C. 373, (*15) 
A.PC. 37 ; Perma Nand y. Shiv CMran 
Das (1921) 2 lah. 69, 59 I.C. 256, (’21) A.L. 
147 ; Villa Bvllen v. Yammamma (1874) 8 
Mad. H.C. 6. 

(r) Lalita Devi v. Ishar Das (1933) 14 Lalj 178 
138 I.C. 58, ('33) A.L. 644. 

(w) Sanmant v. Bhimacharya (1888) 12 Bom. 105; 

Miuakshi\. FaTappa( 1888) 8 Mad 89. 

{x) Sodi V. Venkataswami (1915) 38 Mad. 369. 
21 I.C. 73, (’ID) A.M. 1077. 


(»/) JCnshnamurthi v. Krislmamurthi (1927), 
54 I.A. 248. 50 Mad. 608, 101 I.C. 779, 
(’27) A. PC. 139 : Lakshmi v. Subramanya 
(1889) 12 Mad. 490 ; N arayanasami v. 
Itamasami (1891) 14 Mad. 172. 

(z) Purvalibaiy. Bhagwant{\ii'[b)^^DQm. 593, 
31 I.C. 280, (’15) A,B. 265 ; Subbaramx v. 
Ramamma (1920) 43 Mad. 824, 59 I.C. 
681, ('20) A.M. 637; Paira, Chanar v. 
iSriau'asa(1917) 40 Mad 1122, 40 I.C. 118, 
('18) A.M. 531 [where the other copar- 
ceners had consented to the bcqiie.st]. 



WILLS. 


451 


(iii) A Hmdu female may dispose of her stridhana by will, 

subject in certain cases to the consent of her 
husband [s. 143 j, 

(iv) The owner of an impartible estate may dispose of it 

by will, unless there be a special custom prohibiting 
alienation, or the tenure is of such a nature that 
it cannot be alienated (a). 

(v) Summarising the above, it may be said that that 

property alone can be disposed of by will which can 
be alienated by gift inter vivos. But it does not 
follow that every kind of property that can be 
alienated by gift can be disposed of by will. Thus 
a widow governed by the Mayukha may alienate 
by gift moveable property inherited by her from her 
husband, but she caimot dispose of it by will 
[s. 179], 

Mamteranre — A Hmdu governed by the Dayabhaga law can by his will deprive 
his wife of the share which she would get on a partition between her sons , but the wife 
18 in that case entitled to an adequate provision for her maintenance out of her husband’s 
estate [s 363]. 

Disinheritance — -There is nothing to prevent a Hmdu from so disposmg of his pro- 
perty by will as to defeat the rights of his sons, wife, or other heirs even to the extent of 
completely dismhentmg them (6) No express words are necessary to disinherit the 
heirs , it IS sufficient if the property is bequeathed to some other person (c). But if the 
bequest to that person is not valid, there will be an intestacy to that extent, and the 
property w ill go to the heir, notwithstanding express directions in the will that he shall 
not take The estate must go to somebody, and if there is no valid disposition, it must 
go to the heir (d) Similarly, where under the terms of a will the corpus of the estate is 
not to vest until the happening of a certain event, it will tn the meantime vest m the heir (e) 

Adopted son — A Hindu adopting a son does not thereby depnve himself of the 
power to dispose of his separate property by will There is no imphed contract on the 
part of the adopter that he would not, m consideration of the gift of his son by the natural 
father, dispose of hie property by will(/), but he cannot dispose of ancestral property 
by will (sr). 

369. Section 57 of the Indian Succession Act, 1925. — 
The Indian Succession Act, 1925, consists of eleven parts. 
Part VI relates to testamentary succession and comprises 


(a) Stx Raja Venkata Sun/a v Court of Wards 
(1809) 22 Mad 383 26 I A 83 [will] , 
Sartaj v Deoraj (1888) 10 All 272, 15 I A 
51 [gift] 

(fe) Mulraz V Chalekany (1838) 2 MIA 54, 
Subbayyav (1887) 10 Mad 251, 

NardUamy iVarosontiaa (1866) 3 Bom H 
C A C 6 


(c) Promnno v Tarrucknaih (1873) 10 Beng L 

K. 267 

(d) Tagore y Tagore (1872) 9 Beng L R 377, 

402 

(e) AtruUya y Kali Das (1905) 32 Cal 861 
(/) 5ri Raia Venkata Stirya v Court of Wards 

(1899) 22 Mad 383, 26 I A 83 
(g) Parmanand v Sh%>' Charandas (1921) 2 Lah 
69, 59 I C 256, (’21) A L 147 


,s». 

368,369 



454 


HINDU LAW. 


Ss. 

371, S72 


371. Wills tounded on the law of gifts. — Bequests stand 
siibstantially on the same footing as gifts (u). It has 
been so laid down by their Lordships of the Privy Council 
in the Tagore case. In that case their Lordships said ; — “ Even 
if wiUs are not universally to be regarded in all respects as gifts 
to take effect upon death, they are generally so to be regarded 
as to the property which they can transfer, and the persons to 
whom it can be transferred ” {v). 

“ Projperiy which they can iransfery — ^That property alone can be bequeathed by 
will which can be alienated by gift inter vivos : see secs. 357 and 368, 

Persons to whom it can be transferred.^'* — Just as before the Acts referred to in 
sec. 360 a gift could not be made in favour of a person who was not in existence at the 
date of the gift, so a bequest could not before those Acts be made in favour of a person 
who was not in existence at the testator’s death. See secs. 372, 373. 

372. Bequest to unborn person : Rule apart from statute.— 
A person capable of taking iinder a will must, either in fact 
or in contemplation of law, he in existence at the death of 
the testator (vi). This rule still applies to cases to which the 
provisions of the three Acts mentioned in the next section 
(s. 373) do not apply. 

Child in the womb. — A bequest to a person not in existence at the testator's death is 
invalid. A child in the womb and a son adopted by a widow after the death of her husband 
are in contemplation of law in exi.stence at the death of the testator. 

A bequest to the wife of the testator’s son in case ho should marry within ten years 
from the testator’s death is valid, provided the son marries a girl who was in existence at 
the testator’s death (rr), as the rule in this section does not apply. 

Illustration. 

A bequest to the eldest child of L takes no effect if L has no child, at the timO'Of the 
death of the testator, even though L has a son bom some time after the testator’ s 
death {y). The decision is also based on another ground. 

Exceptions to the rule. — In la 3 ring down the above rule in the Tagore case the Judicial 
Committee desired “ not to express any opinion as to certain exceptional cases of provi- 
sions by means of contm-ct or of conditional gift on marriage or other family provision for 
which authority may be found in Hindu law or usage.” Thus where a suit against a Hindu 
widow by a person claiming to be the adopted son of her husband was compromised by 
an agreement which provided that on the plaintiff relinquishing his claim to a zemindari, 
the widow and her heirs holding the zemindari should pay a specified annuity to the 
plaintiff and his heirs from generation to generation^ it was held by their Lordships of the 
Privy Council that the annuity was a charge upon the estate, and the agreement was 
enforceable against the widow’s successors. Dealing with the argument that the grant 
was void as offending against the rule against perpetuity, their Lordships said : “ A 


(u) Seth Mulctuind v. Bai Manrha (1883) 7 Born. 
491, 403. 

(p) Tagore v. Tagore (1872) 9 Beag. L.R. 377, 
399 I.A. Sup, Vol. 47, 69 ; Motxvdhu v. 
Mamubai (1897) 21 Bom. 709, 721, 24 I. 
A. 93, 105. 

(to) Tagore v. Tagore (1872) 9 Beng. LJl. 377, 
397, 400 I.A. Sup. Vol. 47, 67, 70; 


Chandi Chum v. SidheBUHiri (1889) 16 Cal. 
71, 15 I.A. 149 ; Venkata v. Suraneni 
(1006) 31 Mad. 310; Bai Mamubai v. 
Doesa (1891) 16 Bom. 443. 

(*) Dineeh Chandra v. Biraj Kamini (1912) 89 
Cal. 87, 11 1.C, 67. 

(v) NdkehetrawaliDtiiy. Brajeunder Das {IQZo. 
12 Pat. 708, 146 I.C. 866, (’S3) A.P. 647. ' 



WILLS. 


455 


uecond contention was that this was a creation of a kind of perpetuity, which the law did 
not allow, or an attempt to create a peimanent relation which was impossible of croatioru 
Whatever might be said about that, if this agreement lay in covenant, seeing that it lies 
in a charge^ there is no difficulty in making it perpetual as long as there are lineal or colla- 
teral heirs of the grantee, and in our view the District Judge and Seshagiri Aiyar, J., in 
the High Court were right in holding that this is a charge” (z). It has also been held 
that an annuity left by a Hindu to his daughter for her life, and then to her son absolutely 
— the annuity having been made a charge, on the estate — is valid, though the son might be 
bom after the death of the testator. A grant of this description does not violate the rule 
against perpetuity {a). 

The rule in this section applies to the office of a Shebait and a direction in the will 
that the office should be held by an unborn person was held to be invalid (6). 

The rule laid down in this section is applicable to all wills, whether they are 
governed by the Dayabhaga law or the Mitakshara law(c), and whether they are or 
are not subject to the provisions of the Indian Succession Act, 1925, relating to Hindu 
wills (d). It may here be observed that the testator in the Tagore case was governed 
by the Dayabhaga school, and the will was made long before the Hindu Wills Act, 1870, 
came into force. As to the law as altered by statute, see s. 373. 

373. Bequest to unborn person : Eule as altered by statute. — 
(i) The rule of Hindu law stated in sec. 372 that a bequest 
cannot be made in favour of a person who was not bom at the 
date of the testator’s death has been altered by three Acts, 
namely, the Hindu Transfers and Bequests Act, 1914, the 
Hindu Disposition of Property Act, 1916, and the Hindu 
Transfers and Bequests [City of Madras] Act, 1921. The rule 
as altered by these Acts may be stated as follows : — 

Subject to the limitations and provisions contained in 
sections 113, 114, 115 and 116 of the Indian Succession Act, 
1925, no bequest shall be invalid by reason only that any person 
t^or whose benefit it may have been made ivas not born at the date 
of the testator's death. 

This rule, however, is not of universal application, but is 
confured to the following cases, namely : — 

(i) to wills executed on or after the 14th February 1914, by 
Hindus domiciled in the province of Madras except the 
city of Madras, and, in the case of wills executed before 
that date, to such of the dispositions thereby made as 
are intended to come into operation at a time which is 


Ss. 

372,373 


(z) Raja of Ramnad v. Sundara (1919) 40 I.A, 
64, 42 Mad. 581, 49 I.C. 704, (’18) A.PC. 
156. See also Khajeh Solehman Quadir v. 
Haioab Sir Salimallah (1022) 49 I.A. 15S, 
49 Cal. 820, 09 I.C. 138, (’22) A.PC, 107. 
(a) Jatindra v. Qhanashyam (1923) 60 Cal. 260, 
72 1.0. 1019. (’23) A.C. 27. 
ip) Manohar Mukherji v. Bhupendra ath 
Muhherji (1933) 60 Cal. 452, 141 X.O. 5 44, 


(’32) A.C. 791 overruling Mathura Nath v. 
Lakhi Narain (1923) 50 Cal. 426, 75 I.C. 
435, (’24) A.C. 68. 

(c) Mangaldas v. Krishnabai (1882) 6 Bom. 38. 

(d) Alanyamonjori v. iSonamoni (1882) 8 Cal. 

637 ; Rad?ia Prasad v. Ranimoni Dasi 
(1911) 38 Cal. 188, 8 I.C. 1061, S.C. on 
appeal, 41 Cal 1007, 41 I.A 176, 23 I.C. 
713, (’14) A.PC. 149. 



456 


HINDU LAW. 


Ss. 

373^375 


subsequent to that date : Hindu Transfers and Bequests 
Act, 1914 ; 

(ii) to wills executed on or after the 20th September, 1916, by 
Hindus in any part of British India except the province of 
Madras : Hindu Disposition of Property Act, 1916 ; 

(iii) to wills executed on or after the 27th March, 1921, by 
Hindus domiciled ivithin the limits of the ordinary original 
civil jurisdiction of the High Court of Madras, and, in 
the case of wills executed before that date, to such of the 
dispositions thereby made as are to come into operation 
at a time subsequent to the 14th February, 1914 ; Hindu 
Transfers and Bequests [City of Madras] Act, 1921. 

For the three Acta mentioned in the section and the history of the legislation on the 
subject, see notea to sec. 360 above. 

The limitations subject to which a bequest can be made in favour of an unborn 
person are set out in secs. 383-387 below. 

374. Election. — Though a Hindu governed by the 
IMitakshara law caimot dispose of by will his undivided interest 
in coparcenary property, he may bequeath his self-acquired 
property to his coparcener and his undivided interest in the 
coparcenary property to a third person. Such a disposition 
is valid, and the coparcener to whom the self-acquired property 
is bequeathed will have to elect, after the testator’s death, as 
to which of the two properties he would take. He cannot 
have both (e). 

375. Probate, letters of administration and succession 
certificate. — (i) In the case of Hindu wills of the classes 
specified in clauses (a) and (b) of sec. 57 of the Indian Succession 
Act, 1925, [s. 369 above], no right as executor or legatee can be 
established in a Court of Justice, unless a Court of competent 
iuiisdiction shall have granted probate of the will. But no 
probate is necessary to establish such right in the case of other 
Hindu wills [el). 

[2) Where a Hindu dies intestate, it is not necessary in 
any case to obtain letters of administration to the estate of 
the deceased to establish a right to any part of the property 
of the deceased. 


(5) But where the suit is one to recover a debt due to the 
■estate of a deceased Hindu, no decree can be passed against 


(e) Kuhan Chand v. Nariman (1920) 10 
Lah. 389, 113 I. C. 298, (28) A. L. 967. 


01) 


Ohisla (1945) Nag. 562, (’46) 



WILLS. 


457 


the debtor except on the production of a probate or letters 
of administration or a succession certificate. 


Ss. 

375,376 


Sub-sec. {1). — Sub-seo. (i) is a ra-produotion of sec. 213 of the Indian Succession Act, 
1925. Where probate is necessary to establish a claim in a Court of law, it is sufficient 
if the probate is produced when the decree is passed. The suit may be instituted without 
a probate (/). 

Sub-sec. (2). — See the Indian Succession Act, 1926, sec. 212. 

Sub-sec. (3). — This sub-section is a reproduction of sec. 4 of the Succession Certificate 
Act, 1889, now the Indian Succession Act, 1925, see. 214. A succession certificate is 
necessary in a suit by a son to recover money which was the self-acquired property of 
his deceased father (j) or in the execution by a widow of a money decree obtained by 
her husband (&). But no such certificate is necessary to recover money to which the 
plaintiff becomes entitled by survivorship (i). 

Who may oppose grant of probate.— Where the nearest reversionary heir to a Hindu 
testator refuses without sufficient cause to oppose grant of probate, the next person in 
the line of succession may oppose it ( j). In the last mentioned case the Court applied 
the principle stated in sec. 207 above. 

Letters of administration where deceased was joint in estate . — No probate or letters 
of administration can be granted in respect of joint family property. But where such 
property stands in the name of the manager or other member of the family, letters of 
administration may be granted to the surviving coparcener as his heir to the legal estate 
in that property, and limited to that property, under sec. 250 of the Indian Succession 
Act, 1926 (i). This constantly happens in the case of shares of a limited company. 


376. Vesting of estate in Hindu executor or administrator.— 
The executor or administrator of a deceased Hindu is his legal 
representative for all purposes, and all the property of the 
deceased vests in him as such ( 1 ). 

See Indian Succession Act, 1925, sec. 211, corresponding with sec. 4 of the Probate 
and Administration Act, 1881. 

No vesting of copaicenary property . — Coparcenary property cannot be disposed of 
by will. Hence it cannot vest in the executor (m). 

Character of Hindu executor.— 'Beiore the passing of the Hindu Wills Act, 1870, the 
estate of a deceased Hindu did not vest in his executor, even if probate was granted to 
him. The executor was not the legal representative of the deceased person, but was 
practically a manager of the estate with no greater power than the manager of the estate 
of a minor, unless the will gave him greater powers. The grant of probate and letters of 
administration took effect only for the purpose of recovering debts and securing debtors 


{/) Chandra Kishore v. Pnisaniui Kuviari (1911) 
38 I.A. 7, 38 Cal. 327, 9 I.C. 22, a case 
under s. 187 of the I. S. Act, 1865, as 
applied to Hindu wills by fclie Hindu Wills 
Act [now 8. 213 of the I. S. Act, 1925, as 
applied by a. 57 of that Act], 

(g) Vaxramn v. Srinivasachanar (1921) 44 5lad. 
499, 02 I. C. 944, (*21) A. M. 163 [F.B.J ; 
Venkaiaramanna v. Venkayya (1891) 14 
Mad. 877. 

(k) Jadowbai v. Puranmal (1944) Nag. 832 

(i) Raghavendra v. Bhima (1892) 16 Bora. 

349 ; Jagmohandas v. Allu Maria (1895) 
19 Bom. 338 ; Sital Proshad v. Kaifnl 
Sheikh (1022) 26 C.W.N. 488, 65 I.C. 
307, ('22) A.C. 149. 

(j) Shib Charan Das, In the goods of (1929) 


50 Cal. 1070, 121 I.C. 687, (’80) A.C. 150. 
(*) Qopalaswamy v. ill ei?naI'«Ai (1929) 7 Rang. 
39, 115 I.C. 905, (’29) A.R*. 99 ; Bank 
of Bombay v. Ai^alal Sarabhai (1900) 24 
Bom. 350 ; Mussamat Uttam v. Dina Nath 
(1918) 54 Punj. Rec. no. 139, 46 I.C. 454. 
('18) A. L. 240. 

{1) Sir MaJiomed Yusuf v. ffargovandas (1923) 
47 Bom. 231, 70 I.C. 268, (’22) A. B. 392 ; 
Ramiak v. Venkatasubbamrna (1926) 49 
Mad. 261, 94 I.C. 83, ('26) A.M. 434 
IP.B.I ; Ganapatki v. Sivamalai (1913) 
30 Mad. 575, 17 I.C. 4. 

(m) Ujambai v. Harakchand Qovindji (1935) 
69 Bom. 644, 37 Bom. L.E. 300, 156 I.C. 
621,(*35)A.B 242. 



458 


HINDU LAW. 


Ss. paying the same, but neither an executor nor an administrator had any such rights as 

376-377 are conferred upon executors and administrators by the Indian Succession Act, 1926 (n). 

Such was the state of tho law prior to the Hindu Wills Act, 1870. That Act 
incorporated see. 179 of tho Indian Succession Act, 1866, which provided that “the 
executor or administrator, as tho case may be, of a deceased person, is his legal represen- 
tative for all purposes, and all tho property of the deceased person vests in him as such.” 
The Hindu Wills Act, 1870, however, did not apply to all Hindu wills. It applied only to 
(1) wills made within certain local limits, and (2) to wills relating to immoveable property 
situated within those limits [see sec. 369]. The Probate and Administration Act which 
applied to all Hindu wills, was not passed until 1881. The latter Act repealed the said 
sec. 179 as part of the Hindu Wills Act, but re-enacted it as part of itself in sec. 4. Both 
these Acts have been repealed and re-enacted by the Indian Succession Act, 1926. 
Sec. 211 of the latter Act corresponds to sec. 4 of the Probate and Administration Act. 

Veititig of property in executor vithout probate . — ^The estate of the deceased vests in 
the executor whether he has obtained probate or not (o). 

The contrary decision of the Calcutta High Court on the Probate and Administration 
Act, 1881, is now of no importance (p). 

A and B are executors of C’s will. A alone obtains probate. This is no bar to 
B’s acting as a legal representative of C’s estate (q). 

376A. Power of Hindu executor or administrator to dispose 
of property, — (i) A Hindu executor has power to dispose of the 
property of the deceased vested in him [sec. 376 above]. In the 
case, however, of immoveable property , this power is subject to 
any restriction contained in the will, miless he has obtained 
probate of the will and also leave from tbe Court which granted 
the probate to dispose of such property. 

(2) A Hindu administrator has power to dispose of the 
property of the deceased vested in him [sec. 376 above]. In 
the case, however, of immoveable property, he cannot mortgage 
it or charge it or transfer it by sale, gift, exchange or otherwise, 
or grant a lease of it for a term exceeding five years, unless he 
has obtained the permission of the Court which granted the 
letters of administration to do so. 

See Indian Succession Act, 1926, sec. 307, corresponding with aeo. 90 of the 
Probate and Administration Act, 1881. 

377. Intention of testator. — “ In determining the construc- 
tion [of a will ] what we must look to, is the iutention- of the 
testator. The Hindu law, no less than the English law, points 
to the intention as the element by which we are to be guided in 


(n) Maniklal v. Manchetji (1870) 1 Bom. 269. 

275; Jugmokandas v. Pallonjee (1898) 22 
Bom. 1; Kftsrodemoney v. Doorgamoney 
(1879) 4 Cal. 455, 408; Sarat Chandra v. 
Hhupendra Natk (1898) 25 Cal. 103 ;Amul‘ 
ya V. Kalidas (1905) 32 Cal. 861 ; Mirza 
Kurruiulainy . yuzbut-ud'B(ywla{\^Q^) 33 
Cal. 116, 129, 130, 32I.A. 244, 257*258. 

(o) Mahomed Yusuf v. Uargoiandas (1923) 47 


Bom. 231, 70 I.C. 268, (’22) A.B. 302; 
V enkatasubbamma V. Hamayya (1932) 55 
Mad. 443, 59 I.A. 112, 136 I.C 111, (’32) 
A.rC, 92. 

(p) Sakina Bibee v. MaJiomed Ishak (1910) 
37 Cal. 839, 8 I.C. 655 

(<?) Chidambara v. Krishnasami (1916) 39 Mad 
365, 368-369, 28 I.C. 221, (’16) A.M. 720. 



WILLS. 


459 


determining the effect of a testamentary disposition ; nor S. 377 

is there any difference between the one law and the other as 
to the materials from which the intention is to be collected. 
Primarily the words of the will are to be considered. They 
convey the expression of the testator’s wishes, but the 
meaning to be attached to them may be affected by 
surrounding circumstances, and where this is the case those 
circumstances no doubt must be regarded (r).” 

“ In all cases the primary duty of a court is to ascertain 
from the language of the testator what were his intentions, i.e. , 
to construe the will. It is true that in so doing they are 
entitled and boimd to bear in mind other matters than merely 
the words used. They must consider the surrounding 
circumstances, the position of the testator, his family relationships, 
the probability that he would use words in a partieular sense, 
and many other things which are often summed up in the 
somewhat picturesque figure. ‘ The Court is entitled to put 
itself into the testator’s armchair.’ Among such surrounding 
circumstances which the Court is bound to consider none 
would be more important than race and religious opinions, 
and the Court is bound to regard as presumably (and in many 
cases certainly) present to the mind of the testator influences 
and aims arising therefrom . . . This fundamental prin- 

ciple does not clash with the principle that the Court will 
not necessarily apply English rules of construction to such a 
will as we have here to deal with. . . Nor does this funda- 

mental principle clash in any way with what is sometimes 
called, ‘ giving a liberal interpretation ’ to native wills. That 
native testators should be ignorant of the legal phrases proper 
to express their intentions, or of the legal steps necessary 
to carry them into effect, is one of the most important of the 
‘ surrounding circumstances ’ which the Court must bear in 
mind, and it is justified in refusing to allow defects in expres- 
sion in these matters to prevent the carrying out of the testator’s 
true intentions. But those intentions must be ascertained by the 
proper construction of the words he uses, and once ascertained 
they must not be departed from (s).” 

It is clear from the passage cited above that the intention 
of the testator is to be gathered primarily from the language of 

(r) Soorjeemoney Dosaee v. Denobundoo Mullick 199, 221>223, 41 I. A. 61, 70-72, 23 I.C* 

(1857) 6 M.I.A. 626, 651. 16Q Sasanka Bhtisan v. Oopi Ballav (*35) 

(s) Narasimha v. Parthaaarathy (1914) 37 Mad. A.C. 716, (1936) 63 Cal. 385, 159 I.C. 437. 



460 


HINDU LAW. 


Ss. 

377,378 


the iriU. 'VMiere the language is clear and consistent, it must 
receive its liteml construction, unless there is something in the 
will itself to suggest departure from it (t). If the real meaning 
can be reasona&y ascertained from the language used, that 
meaning is to be enforced to the extent and in the form which 
the law allows (u). Clear and unambiguous dispositive words 
are not to be controlled or qualified by any geueral expression of 
intention (r). Technical words or words of known legal 
import, must have their legal effect, eveir though the testator 
uses inconsistent words, miless those inconsistent words are of 
such a nature as to make it perfectly clear that the testator did 
not mean to use the technical terms in their proper sense. Thus 
the words “ become malih (owner) ” confer an heritable and 
alienable estate, unless the context indicates a different meaning. 
Similarly the words putra putrade hrame have acquired a 
technical force, and are used as meaning an estate of inherit- 
ance {w). At the same time it must be recognized that 
documents in the vernacular are often expressed in loose and 
inaccurate language and thus sometimes a meaning more 
extended or more r^ricted than the literal meaning may have 
to be given to particular words in vernacular documents 
provided the context justifies doing so {x). Particular words 
in a will should not be construed with reference to similar 
words in another will. The will must be read as a whole to 
ascertain the intention of the testator and where the intention is 
clearly expressed by unambiguous Avoids in certain clauses 
other words in other clauses repugnant to them may be 
discarded {y) . 


Where a testator bequeathed his property to his wife absolutely with a condition 
that if unchastity is established the reversioners should share the property equally, it 
was held that unchastity does not cover re-marriage in the absence of a clause prohibiting 
re-marriage (2). 


378. Ordinary notions and wishes of Hindus to be taken into 
consideration. — “ In construing the wiU of a Hindu it is not 


(0 GuTusami v. Sivakami (1895) 18 Mad. 347, 
358, 22 I.A. 119. 

(It) Tagore v, Tagore (1872) 9 Beng. L.B, 377, 
395 I.A. Sup. Vol. 47, 65; Rant Taro- 
keisuT Roy v. Soski (1883) 9 Cal. 952. 
10 I. A. 51. 

(r) Basant Kumar Basu v. Ramhankar Ray 
(1932) 59 Cal. 859, 138 I.C. 882. ('32) A.C. 
600. 

(u?) Lalit Mohun v. Chukkun Lai (1897) 24 Cal. 
834, 24 I.A. 76 ; Surajmam v. Rabi Katk 
(1908) 30 All. 84, 35 I.A. 17; Prolapsing 
V Agarsingji (1919) 40 I.A. 97, 43 Bom. 
778, 50 I.C. 457, (’18) A.PC. 192, 


Soorjeemoney Dossee v. Benobundco 
MuUick (1857) 6 M.I.A. 526, 551 ; 

BiMOMOwt/i V. Bamasoondery (1867) 12 
M.I.A, 41, 59. Sec also Rain Sarayau 
Singhy. Ram Saran Lai {1919) 46 I.A. 88, 
46 Cal. 683, 50 I.C, 1, (’18) A.PC. 203. 

(a:) Rajendra Prasad v. Gopal Prasad (1980) 
57 I.A, 296, 10 Pat. 187, 127 I.C. 743, 
(*30) A.PC. 242. 

(y) Kanbya Lai Missir v. ilfsf. Sira Bibi 
(1936) 15 Pat. 151, 163 I.C. 940, (’36) 
A.P. 323. 

(^) Har Bux Singh v. ShantiDeii 

(1941) 16 Luck. 414, 192 I.C. 53. (’41) 
A. 0.353. 



WILLS. 


461 


improper to take into consideration wkat arc known to be 
the ordinary notions and wishes of Hindus with respect to the 
devolution of property. It may be assumed that a Hindu 
generally desires that an estate, especially an ancestral estate, 
shall be retained to his family, and it may be assumed that a 
Hindu knows that, as a general rule, at all events, women do 
not take absolute estates of inheritance wliich they are enabled 
to alienate ” [a) [s. 143]. The predilections of the class to 
which the testator belongs may be kept in view (6). I^Tiere 
a testator gave certain properties to his daughters with a 
direction that they should enjoy the interest with their sons, 
grandsons, etc., and that neither the daughters nor their sons or 
grandsons, etc., should be entitled to give, sell or mortgage the 
properties, it was held that the daughters and the daughter’s 
sons took only life estates (o). 


(rt) Mahomed Shamsool v. Shewukram (1874) 14 
Beng. L.R. 220, 231, 232, 2 I.A. 7. 14-15 ; 
Radha Proaad v. Ranee Mani (1908) 35 
Cal. 890, 902, 35 I.A. 118, 129. 

(6) Bhusan v. Gopi Ballav (1935) 159 


I.C. 437, ('35)A.C. 716. 

(c) Bifiabatki Debt v. Makendra Chandra Lahiri 
(1037) 1 Cal. iOQ, ITS I.C. 857, ('38) A.C. 

34. 


S. 37» 



462 


CHAPTER XX. 

rules common to gifts and wills. 

Ss. 379. Tagore case.- — The leading case on Hindu wills 

379,380 and gift-s is the Tagore case {d) decided by the Judicial Com- 
mittee in the year 1872. A synopsis of that case is given in 
illustration (e) to sec. 382 below. The rules laid do^ in 
that case and the decisions founded thereon are set out in the 
following sections. The fundamental principle underlying 
those rules may be stated as follows : — 

Subject to the provisions of sec. 368, a Hindu may give or 
bequeath his property to any one he likes. He may not only 
direct who shall take the estate, but may also direct what 
quantity of estate they shall take. But the person who is to 
take must be in existence at the date when the gift or bequest 
is to take effect, and the estate given to such person must be an 
estate recognized by the Hindu law. The validity of a gift or 
bequest depends on the fulfilment of the conditions not only as 
to the person who is to take, but also as to the estate which is 
to be taken by him. The mere fact that the donee is a person 
capable of ta kin g under the deed or will is not sufficient to vali- 
date the gift. It is further necessary that the estate given to 
him must be one recognized by the Hindu law. As to what 
estates are not recognized by that law, see sec. 382 below. The 
rules laid down in the Tagore case as applicable to Hindu 
wiUs, are apphcable to hereditary offices and endowments as 
well as to immoveable property (e). 

In cases governed by the Hindu Transfers and Bequests 
Act, 1914, the Hindu Disposition of Property' Act, 1916, and 
the Hindu Transfers and Bequests [City of Madras] Act, 1921, 
a grant may be made to an unborn person subject, however, to 
the limitations and provisions contained in those Acts [see 
secs. 383 to 387 below]. 

380. Estate of inheritance. — (J ) An important rule applica- 
ble to wills and deeds of gift is that a benignant construction 
is to be used ; and that if the real meaning of the document 
can be reasonably ascertained from the language used, though 
that language be ungrammatical or untecWcal, or mistaken 
as to name or description, or in any other manner incorrect, 

(d) Tagore v. Tagore (1872) 9 Beng. L.B.. i«) Oanesh Chander v. Lalbehari (1936) 05 I.A. 

377.I.A. Sup. Vol, 47. 448, 38 Bom. L.B. 1250, 164 I.C. 347, 

('36) A.PO. 318. 



RULES COMMON TO GIFTS AND WILLS. 


463 


provided it sufficiently indicates what was meant, that meaning S. 380 
shall be enforced to the extent and in the form which the law 
allows. Accordingly, if the gift confers an estate upon a man 
with words imperfectly describing the kind of inheritance 
but showing that it was intended that he should have an estate 
of inheritance, the language would be read as conferrmg an 
estate inheritable as the law directs. If, an estate were given 
to a man simply without express words of inheritance, it 
would, in the absence of a conflicting context, carry by Hindu 
law (as under the present state of law it does by will in England) 
an estate of inheritance. Thus a gift to A simply without the 
words “ and his heirs ” would, in the absence of conflicting 
context, pass by Hindu law an absolute estate. If there were 
added to such a gift an imperfect description of it as a gift 
of inheritance, not excluding the inheritance imposed by the 
law, an estate of inheritance would pass. If again, the gift 
were in terms of an estate inheritable according to law, with 
superadded words, restricting the power of transfer which the 
law annexes to that estate, the restriction, would be rejected, as 
being repugnant, or, rather, as being an attempt to take away 
the power of transfer which the law attaches to the estate which 
the giver has sufficiently shown his intention to create, though 
he has added a qualification which the law does not recognise. 

(2) If, on the other hand, the gift were to a man and his 
heirs, to be selected from a line other than that specified by 
law, expressly excluding the legal course of inheritance, as, 
for instance, if an estate were granted to a man and his eldest 
nephew, and the eldest nephew of .such eldest nephew and so 
forth for ever, to take as his heirs, to the exclusion of all other 
heirs, and without any of the persons so taldng having the 
power to dispose of the estate during his lifetime, then inas- 
much as an inheritance so described is not legal, such a gift 
cannot take effect, except in favour of such persons as could 
take under a gift and to the extent to which the gift is in- 
consistent with the law. The first taker would, in this case, 
take for his lifetime, because the giver had at least that m.ten- 
tion. He could not take more, because the language is in- 
consistent wdth his having any different inheritance from that 
which the gift attempts to confer, and that estate of inheritance 
which it confers is void (/). 

(/) Tagore v. Tagore (1872) 0 Beng. L.U. 377, I v, Nanda Kumar (1906) 83 Cal. 1306. 

395, 1. A. Sup. Vol. 47, 66 ; Manikyatnala I 



464 


HINDU LAW. 


Ss. 

# 1.382 


381. Limited estates. — A Hindu may create a life-estate or 
successive life-estates or any other estate for a limited term, 
provided the donee is a person capable of taking under the 
deed or will {g). 


382. Estates repugnant or unknown to Hindu law. — A man 
cannot create a new form of estate, or alter the line of suc- 
cession allowed by law, for the purpose of carrying out his 
own wishes or policy. Inheritance does not depend on the 
wiU of the individual owner. Inheritance is a rule laid down 
(or, in the case of custom, recognised) by the vState, not merely 
for the benefit of individuals, but for reasons of public policy. 
It follows directly from this that a private individual, who 
attempts by gift or will to make property inheritable otherwise 
than the law directs, is assuming to legislate, and that the 
gift must fail, and the inheritance take place as the law 
directs (A). A will in favour of the testator’s widow prohibiting 
all transfer of the property directing that all management 
of the property should be made after consultation of certain 
persons and giving her powers of nominating a legatee by her 
wiU, such legatee possessing certain qualifications is an attempt 
to create an estate unknoivn to Hindu law and is void (^). 


A will or deed camiot institute a course of succession 
unkn own to the Hindu law : and in conferring successive 
estates, the estate of inheritance must be such as is known 
to the Hindu law. All estates of inheritance created by gift 
or will, so far as they are inconsistent with the general law of 
inheritance, are void as such. An English estate tail is an 
estate unknown to the Hindu law ; no person, therefore, 
can succeed under a gift or null as heir to such an estate (j). 
On this ground, wills and gifts which direct an estate to go in 
an order of succession which excludes female heirs (A) [that 
is, an estate in tail male], or male heirs (1), or heirs by 
adoption {m), or daughters and their sons {n), or includes only 
some of the heirs (o) have been held invahd to that extent. 


(p) Tagore v. Tagore (1872) 9 llciig. L K. 377, 
405 1. A. Sup. Vol. 47, 75 ; liani Tarokessur 
Roy V. Soshx (1883) 9 Cal. 952, 10 1. A . 51. 
(A) (1872) 9 Beng. L.B. 377, 394-395 I.A. Sup. 

Vol. 47, 65-66, supra. 

(t) Ramu\. .K(M7ii(1944) All. 9. 

(i) (1872) 9 BRua. L.B. 377, 396 I A. Sup. Vol. 
^7, supra ; Kristorom<mi\ . A^arcnd7o(1889) 
16 Cal. 383, 392, 16 I.A. 29. 

(i) Rani Tarokessur Roy v, Sosht, (1883) 9 Cal. 
952, 10 I.A. 51 ; Vullubhdas v. Gordhandas 
(1890) 14 Bom. 360 ; Venkata y. CheUa- 
yammi (1894) 17 Mad. 150, Laksfimakka 


V. Boggaramanna (1896) 19 Mad. 601 ; £ai 
Dhanlaxmi IJariprasad (1921) 45 Bom. 
1038, 02 1.C. 37, (’21) A.B. 262 
(0 Kanhaminay. Eu7i?iamli{l\i09) 32 Mad. 3) 5, 
1 1.C 105; Chandra Choor Dev y. ViO?iu(i 
Bhushan Deia (1944) 23 Pat. 763. 

(m) Suriya Rau v. Raja of Piltapur (1886) 9 
Mad. 499, 13 I.A. 97. 

(«) Puma Sashi v. Kahdhan (1011) 38 Ca) 603, 
38 I.A. 112, 11 1.C. 412. 

(o) Manohar itukherji v. Bhupendranath Mul - 
/ierji(1983) 60 Cal. 452, 141 l.C. 544. (’82) 
A.C.701. 



RULES COMMON TO GIFTS AND WILLS. 


465 


Illustrations. 

(a) Property is bequeathed to B, and after him to the heirs male of his body, that is, 
his heirs in tail male. 

This case gives rise to the following three points : — 

Isi point. — The estate tail la void.—The bequest to R’a heirs is void, for the estate 
attempted to be conferred upon them is an estate in tail male, and such an estate is 
unknown to the Hindu law. 

2nd point. — B takes an estate for life . — ^Does B take any interest under the will ? If 
so, does he take an absolute estate or a life estate only ? The answer is, that B takes 
a life estate oiUy. He does not take an absolute estate, for the result of putting that 
construction on the will would be that B, as absolute owner, might mortgage or give 
away the property, in which case the property might pass away from the family to a 
mortgagee or a stranger donee. To adopt this construction would be in effect to make a 
new wjU for the testator and one which, so far from carrying his intention into effect, 
would be in direct opposition to his intention, and indeed to his main object, viz., to keep 
the property in the family. But B certainly does take an estate for life, as in respect of 
him “the giver had at least that intention”. The presumption is that the testator 
intended to benefit B personally for it is clear that if tho bequest to B and his heirs in 
tail male were valid, it would have carried with it the enjoyment by B of the property 
during his life. “ This intention, though it is mixed up with au intention to give an estate 
tad, may lawfully take effect,” 

Srd point.— ffctr-at-lciu) entitled to whole estate after S’s death . — (a) The result is that 
B takes an estate for life, and on his death the property will revert to the testator’s estate, 
that is, it will go to the, testator’s heirs (p). The rule of English common law 
that the undisposed of residue of personal estate vests in the executor beneficially, does 
not apply to the will of a Hindu testator in India {?). 

(b) A, after providing for certain legacies, bequeaths the residue of his property 
to his executor upon trusts to pay the income to his daughter B during her lifetime and 
after her death upon trust to convey the property to his brothers 0 and D in equal shares 
and to the heir or heirs male of their or either of their bodies and on failure of these to the sons 
of his daughter B. 

■ C had three sons living at A’s death. D had no son living at A’s death but two 
sons are bom to him after A’s death, and during H’s lifetime. B had no son at A’s death, 
but six sons are born to her after A’s death. What are the rights of the parties under 
the will ? 

B takes an estate for life. C and D each takes an estate for his life in one moiety 
of the residue in remainder expectant on the death of B. The bequest to the heirs of 
C and D is void as it is a bequest of an estate tail. B's sons are not entitled to any 
interest under the will, as none of them was in existence at the testator's death, and 
further, because tho estate purporting under the will to be devised to them w'as already 
void before it could pass to them. The result is that on the deaths of C and D respec- 
tively, his moiety will pass to the testator’s heir. If C dies in B’s lifetime, and if B is the 
heir-at-law, C’s moiety will pass to B, so that B will be entitled in possession to one 
moiety of the residue : Krisloromoni v. Narendro (1889) 16 Gal. 383, 16 I.A. 29. 

In dealing with the contention that the brothers took an absolute estate, their 
Lordships observed as follows : — 

“ Their Lordships cannot see where the absolute gift of the property to the brothers 
comes in. It is given, not to them, but to them and their heirs male. Why should the 
words ‘ heirs male ’ be introduced at all, if an estate descendible to heirs general has 

tp) Tagore v. Tagore (]872) 9 Beng. L. U. 377, I .v. Nanda Kumar f 1900) 33 Cal. 1306. 

95 I.A. Sup Vol. 47, 66; Manikyamala \ (q) Latlubai v. J^Iankuvarbai (1878) 2 Bom. 2SS. 


S.38Z 



466 


HINDU LAW. 


S.382 previously been given ? The words must mean either that the estate of inheritance given 
to the brothers ia a qualified one, or that the heirs male are to take somehow by way 
direct gift from the testator. The latter of these two alternatives can only bo reached by 
reading the word ‘ and ’ as if it was ‘ or Indeed one passage of the judgment looks as if 
this consTnirtion wa®; in the mind of the learned judges. They point out that no words of 
limitation are attached to the words ‘ heirs, &c.* And they add, ‘ this shows that the 
intention was that whenever the estate was conveyed from his own trustees to his half- 
brothers who might be alive, or to their or either of their male descendants, it was to be 
an absolute estate as soon as it becomes vested in them.’ This cannot refer merely to the 
circumstance that in making the conveyance after the daughter’s death it might be neces- 
sary, if the brothers tbemseives were dead, to convey to their heirs, because, on the hypo- 
thesis of an absolute interest m the brothers, the conveyance would bo to the heirs general 
or it might be to the alienees, not to the male descendants. The absence of words of 
limitation after the words ‘ heirs, &c.,’ does not appear to their Lordships to be of much 
significance ; but, as far as it goes, it rather favours the appellant’s than the respondent’s 
construccion, because if ‘ heir.s, &c.,’ are themselves words of limitation, words of limita- 
tion attached to them would be inappropriate ; otherwise they would be appropriate, 
and they would tend to show that the ‘ heirs ’ were objects of direct gift. But upon 
putting it to Sir. Righy whether he claimed to read the word ‘ and ’ in a disjunctive sense 
he at once disclaimed any such contention, and indeed it is obvious that there are great 
difficulties in the way of such a construction, even if it would better the position of the 
respondents. Their Lordships therefore find that the first of the two alternative construc- 
tions is the only possible one.” 

(c) A bequeathes certain property to his three nephews, B, C and D, “for the 
payment of the expenses of their pious acts.” He then directs as follows : “ My three 

nephews shall possess the property in equal shares. They shall have no rights to alienate 
the same by gift or sale ; but they, their sons, grandsons and their descendants in the 
male line shall enjoy the same. If any die without leaving a male child, his share shall 
devolve on the surviving nephews and their male descendants, but not on his other heirs. 

A dies leaving him surviving the three nephews, B, C and Z>, and a son F. B dies 
unmarried. Then C dies leaving a widow, but no issue. F sues D for a declara- 
tion of his rights in the property. What- are the rights of the parties at this stage in the 
property ? 

The bequest to the sons, grandsons and descendants of the nephews in the male 
line is void, for the effect of it is to exclude females altogether. Such an estate of 
inheritance is inconsistent with the general law of inheritance which admits males as 
well as females to succession. The attempt to confine the succession to males to the 
entire exclusion of females, is a distinct departure from Hindu law, ‘ excluding * in the 
terms of the judgment in the Tagore case, ‘ the legal course of inheritance *. 

On A’s death B, C and Z) each took an estate for life in one-third of the property. On 
B'q death, his share went to his two brothers, C and D. On the death of C, D as the 
survivor of the three brothers, became entitled to a life estate in the whole of the properly 
[s. 389]. 

In the case on which this illustration is based, it was contended that the intention 
of the testator was to confer an absolute estate on 2?, C and Z), and that that intention 
might be effectuated by striking out that portion of the will which excluded females 
from succession. But this contention was overruled. The Judicial Committee said : 
“ To alter the words prescribing the course of succession, so as to admit females, would 
bo in effect to make a new will for the testator and one which, so far from carrying his 
intentions into effect, would be in direct opposition to his intention, and indeed to hia 
main object expressed in other parts of his will, as well as in this clause, viz., to exclude 
females.” The result is that on Z>’9 death, the whole property will revert to .d’s estate 



RULES COMMON TO GIFTS AND WILLS.* 


467 


and paflR to his heirs. If F is alive at D'a death, it will pass to him as the heir of A : 
Jtani Tarokessuar v. Soshi (1883) 9 Cal. 962, 10 I.A. 61. 


(d) Two brothers subject to the Dayabhaga school of Hindu law execute a joint 
will whereby they purport to provide for the permanent devolution of their respective 
properties in the direct male line, including adopted sons, with the conditions that on 
failure of lineal male heirs in one branch the properties belonging to that branch should 
go to the other, subject to the same rule ; and that only in the absence of male descendants in 
the direct line in either branch should the properties go to female heirs or their descendants. 
The document is invalid and void. Tho object of the document is clearly to alter the 
rule of succession in the family to which the parties belonged by excluding female heirs 
and their descendants. Under it the female heirs and their descendants are not to receive 
the shares prescribed for them by tho Hindu law of inheritance until there is an indefinite 
failure of male issue in both branches of tho family. The result is that on the death 
of either of the two executants, his share will pass to his heirs according to the 
Dayabhaga law ; Puma Soshi v. Kalidhan (1911) 38 Cal. 603, 38 I.A. 112, 11 I.C. 412. 

Note. — ^The above case as well as the Tagore case [ilL (e)] must be distinguished from 
a case like the one in ill. (a) to sec. 389. The latter case does not point to an indefinite 
failure of male issue, but to a failure of male issue of any of the testator’s sons at the time 
of the death of that son (r). 


(e) 


Tagore case. — In tho Tagore case property was bequeathed — 


(1) to A for life ; 

to A’s eldest son for life ; 
in strict settlement upon the 
first and other sons of such 
eldest son successively in tail 
male. 


j>=to A and his heirs in tail male, 


(2) “after tho failure or determination’’ of the above estate, to B and his 
heirs in tail male, 

(3) “ after tho failure or determination ’’ of the last mentioned estate, to the 
heirs of G in tail male. 


S.382 


The will expressly adopted primogeniture in the male line through males, and excluded 
females and their descendants (s). 

At the time of the testator’s death, A, the head of the first series of estates, had 
no son. B, the head of the second series of estates, had a son D bom in the lifetime of 
the testator. C was dead at tho making of the will but left a grandson F born in the 
lifetime of the testator. The testator died leaving an only son, S. No provision was made 
for him in the will, as he had become a Christian. Some time after the testator’s death, 
hiB son S brought a suit to set aside the will. It was held that A took an ©state for life 
that all other bequests were void, and that the plaintiff, as the heir of the testator, was 
entitled to the whole state after the death of A. The estates tail were void, for they 
were inconsistent with the Hindu law of inheritance. It was also held that B and D, 
though they were in existen-'-e at the testator’s death, took nothing under the will, for they 
were only to take “ after the failure or determination ” of the previous series of estates, 
that is to say, after the actual exhaustion of the line of A in conformity with the will. This 
event had not arisen and could not arise. The incapacity of A’e line to succeed by reason 
of the illegaliiy of the will did not entitle 5 or Z) to any benefit under the will. For the same 
reason, F though he was in existence at the testator’s death, took nothing under the will : 
Tagore v. Tc^ore (1872) 9 Beng. L.R. 377, I.A. Sup. Vol. 47. The plaintiff’s conversion 
to Christianity was no bar to his succession to his father’s estate, having regard to the 
provisions of the Caste Disabilities Removal Act, 1850. 

Note.' — A Hindu may entirely disinherit his son or other heir by bsqueabhing the 
whole of his property to another. By so doing, he does not create an estate inconsis- 
tent with the general law of inheritance : he merely exercises the power which the 
Hindu law allows him. But what the Hindu law does not allow is to confer upon any 


(r) Soorjeemoney Dosaey v. Denobundoo Mulliek 
(1862) 9 M.LA. 123, 184. 

(r) See also The Administrator General of Bengal 


y. Lalbihari Dhar (1934) 61 Cal. 39, 152 
I.C, 710, (’34) A.C. 629. 



468 


HIXDU LAW. 


S.382 iejratee an f‘*-tate which would be incon^^istcnl with the Hindu l<tw of itihentancef in other 
words, an estate which would exclude the legal course of inheritance. An estate is 
said to be inconsistent with the Hindu law of inheritance if it is given to A and the heirs 
male of his body, for the efiect ia to QxclMdo female heirs. If it were given to A absolutely, 
then, on A's death intestate, the estate would pass according to the general law of 
inheritance to A’s heir, whether the heir was a son, or a uidoic or a daughter. But the 
attempt to give an estate to A and the heirs male of his body is to exclude /emu?e heirs ; 
in other words it is an attempt to alter the line of succession allowed by law . 

(f) A Hindu by a deed of settlement conveys property to trustees upon trust to 
pay the income arising therefrom to liimself for life and after his death, as to a une-fourth 
share, to his married daughter K for her sole and separate use and after her death in 
trust for the male heirs of the said K share and share alike.” K survives the settlor and 
dies some years after the date of the settlement leaving t» sons all of whom were in existence 
at the date of the deed. The gift to the sons is an absolute gift to them of the property 
and they take the property as tenants in common in equal shares. In the course of the 
judgment their Lordships of the Privy Council said : ” In settling the true construction 

of this deed, therefore, unless there is a special reason afforded by the deed itself to the 
contrary, the technical meaning given to words in English law must be disregarded. 
So also must rules like the -well-known rule in Shelhf s case, based hero upon feudal customs 
that have had no existence in Bombay. Further, it is to bo remembered that a gift to a 
class of which no member existed at the date of the deed would be bad, and so also a defi- 
nite attempt to create what in England would be regarded as an estate tail : see Tagore v. 
Tagore (t). The main part of the respondents’ argument depends upon this last con- 
sideration, They assert that this was the true meaning of the gift — to the male heirs of 
Krishnabai after Krishnabai’s death — and that it consecpiently failed. They further argue 
that the w'ords themselves connote a descendible quality of estate with which it was the 
intention of the settlor to impress the property either in the gift to Krishnabai or to 
the male heirs. Their Lordships are unable to accept this view, which is permeated by the 
suggestion that the -words when used in a Bombay settlement are primarily words of 
inheritance denoting the character of an estate. They do not think that the male heirs 
of Krishnabai took by inheritance from her. They are of opinion that the estate that 
Krishnabai took was defined and limited by her life interest, and that it was not by 
descent from her but by virtue of a w’hoUy independent gift that her male heirs W’ere bene- 
ficiaries under the deed. These male heirs being in fact living at the date of the deed, no 
difficulty arises .... Their Lordships are of opinion that the true interpretation 
is that the persons who answer the description of male heirs at the date of Krishnabai’s 
death were the persons in whose favour an independent gift was made, but that by 
operation of the Hindu law there w'ould be excluded from that class people who were not 
living when the deed was executed, 'fhcre is nothing whatever in the words of the grant 
to show that the estate so conferred was anything but an absolute estate upon such per- 
sons. For there is nothing to suggest, on the one hand, that such estate was limited to 
their life or, on the other, that any line of descent was marked out after their death. It 
is true that the gift is in the form of a gift of income but it is a gift unlimited in point of 
time, and if there be no restriction in the gift and no limitations beyond the actual 
beneficiaries at Krishnabai’s death such a gift carries the whole estate ” ; Madkavrao v. 
Balabkai (1928) 55 I.A. 74, 52 Bom. 176, 107 I C. 119, (’28) A.PC. 33. The rule in this 
section applies to wills providing for succession of shebaits of an endowment (u). 

When the husband gave his wife full po-wers of transfer over the property but without 
giving her an absolute estate such a disposition is not repugnant to Hindu Law and 
alienations by her are binding on the reversioner (v). 

it) (1872) 9 Beag. L.E. 377, I.A. Sup. Vq|. 47. 1 (’36) A.PC. 318. 

(«) Ganesh Chander v. Lalbehari (1036) 65 I.A. (u) Bishun Singh v. Shrt Thakvrji BangJa yaxn 
448, 38 Bora. L.R. 1250, 104 I.C. 347, I B7ia:;«;an 72 I.A. 27. 



RULES COMMON TO GIFTS AND WILLS. 


469 


383. Limitations subject to which a gift or bequest can be 
made to an unborn person. — As has already been stated, a 
Hindu may under the Acts of 1914, 1916 and 1921 referred to 
in secs. 360 and 373 above, dispose of his property by transfer 
inter vivos or by will in favour of an unborn person. This, 
however, can only be done subject to certain limitations and 
provisions. These limitations and provisions are — 

(a) in respect of dispositions by transfers inter vivos, 
those contained in Chapter II of the Transfer of 
Property Act, 1882, and 

(b) in respect of dispositions by wiU, those contained 
in sections 113, 114, 115 and 116 of the Indian 
Succession Act, 1925'. 

Chapter II of the Transfer of Property Act, 1882, did not originally apply to Hindus. 
It has now been extended to Hindus by the Transfer of Property (Amendment) Act 20 
of 1929, sec. 3. The sections of that Chapter material for the present purposes are 
secs. 13, 14, 13 and 16, which correspond to secs. 113, 114, 115 and 116 of the 
Indian Succession Act, 1925. Beth those sets of sections are similar in substance; 
they are therefore dealt with together in secs. 384, 385, 386 and 387 below. 

All the eight sections assume that a gift or bequest can be made in favour of an 
unborn person. They did not 'apply to Hindus at first. They were gradually made 
applicable to Hindus. The Hindu Transfers and Bequests Act, 1914, and the Hindu 
Transfers and Bequests [City of Madras] Act, 1921, incorporated only s. 14 of the Transfer 
of Property Act and the corresponding s. 114 of the Indian Succession Act, being the 
sections which relate to the rule against perpetuity. The Hindu Disposition of Property 
Act, 1916, incorporated two more sections, namely, s. 13 of the Transfer of Property 
Act and the corresponding s. 113 of the Indian Succession Act. The first time all the 
eight sections were applied to Hindu gifts and wills was by the Transfer of Property 
(Amendment) Supplementary Act 21 of 1929, by which aU the three Acts mentioned 
above were amended and they were aU made uniform ; see ss. 11, 12 and 13 of Act 21 
of 1929. 

384. Disposition in favour of unborn person subject to 
prior disposition. — Wliere a gift is made to a person not in 
existence at tbe date of tbe gift or a bequest is made to a 
person not in existence at tbe death of tbe testator, subject to 
a prior gift or bequest, tbe later gift or bequest shall not take 
effect, unless it extends to the whole of the remaining interest 
of the donor or testator in the property. 

lllustratiojis. 

(1) Gift. — A transfers property of which ho is the owner to J5'in trust for A and 
his intended wife successively for their lives, and, after the death of the survivor, for the 
eldest son of the intended marriage /or life, and after his death for ^’s second son. The 
interest so created for the benefit of the eldest son does not take efiect, because it does 
not extend to the whole of -.4’s remaining interest in the property. 


Ss* 

383,384 



470 


HINDU LAW. 


Ss. 

384,385 


(2) Bequest , — Property is b&queathed by a father to hia son for life, after his death, 
to his son’s wife for life and after her death to certain other persons. The son’s wife 
was not in existence at the date of the testator’s death. The becLuest to her, not being 
of the whole interest, is void (ta). 

This section is a combination of s. 13 of the Transfer of Property Act, 1882, and 
a. 113 of the Indian Succession Act, 1925. 

385. Rule against perpetuity. — (i) — No transfer of 

property can operate to create an interest which, is to take effect 
after the lifetime of one or more persons Uving at the date of 
such transfer, and the minority of some person who shall be in 
existence at the expiration of that period, and to whom, if he 
attains full age, the interest created is to belong. 

(2) Bequest . — ^No bequest is valid whereby the vesting of 
the thing bequeathed may be delayed beyond the lifetime of 
one or more persons living at the testator’s death, and the 
minority of some person who shall be in existence at the 
expiration of that period, and to whom, if he attains full age, 
the thing bequeathed is to belong. The rule applies to private 
trusts also (x). 

IllustTaiions, 

(a) A fund is bequeathed to A for his life, and after his death to B for his life, and 
after £’s death to such of the sons of B who shall first attain the age of 25. A and B 
survive the testator. Here the son of B who shall first attain the age of 25 may be a 
son bom after the death of the testator; such son may not attain 25 until more than 18 
years have elapsed from the death of the survivor of A and B ; and the vesting of the fund 
may thus be delayed beyond the lifetime of A and B and tbe minority of the sons of B, 
The bequest after B's death is void. 

(b) A fund is bequeathed to A for his life, and after his death to B for his life, and 
after 5’a death to such of jB’s sons as shall first attain the age of 25. B dies in the life- 
time of the testator, leaving one or more sons. In this case the sons of B are persons 
living at the time of the testator’s decease, and the time when either of them will attain 
25 necessarily falls within his own lifetime. The bequest is valid. 

(c) A fund is bequeathed to A for his life, and after his death to B for his life, with 
a direction that after B'a death it shall be divided amongst such of B*b children as shall 
attain the age of 18, but that, if no child of B shall attain that age, tbe fund shall go to 
C. Here the time for the division of the fund must arrive at the latest at the expiration 
of 18 years from the death of B, a person living at the testator’s decease. All the bequests 
are valid. 

Sub-sec. (J) is sec. 14 of the Transfer of Property Act, 1882. Sub-sec. (2) i.s sec. 114 
of the Indian Succession Act, 1925. Both these sections are the same in substance, 
though different in form. 

The rule against perpetuity does not apply to charitable or religious endowments. 
See sec. 411 below. 


(w) Kuppusami Pillai v. Jayalalcshmi Ammal 
(1935) 58 Mad. 15, 154 1.C. 537, ('34) A.M. 
705 ; Bibahaihi D^ee\ . Mahendra Chandra 
Lahiri{l9Z7) 1 Cal. 400, 173 I.C. 857, ('38) 


A.C. 34. 


(a?) Ajitkumara Mitra v. Tarabala Dasi (1936) 
63 Cal. 209. 



GIFT TO A CLASS. 


471 


Rule of Hindu law before legidalion.- — ^The above rules apply only to gifts and 
bequests which are within the Hindu Transfers and Bequests Act, 1914, the Hindu 
Disposition of Property Act, 1916, and the Hindu Transfers and Bequests [City of 
Madras] Act, 1921, dealt with in see. 360 above. As to gifts and bequests which do not 
come within those Acts, the old rule stiU applies. That rule may be stated as follows : — 

Where it appears from the will that the intention of the testator was not to pass the 
estate at all, but to create a perpetuity, as where the will contains a direction, as regards 
the corpus, that it should be kept intact for ever, and, as regards the income of the 
property, that portion thereof should be enjoyed by the testator’s sons, grandsons and 
their descendants for ever and that the rest should be accumulated, the direction is 
invalid, and the estate wiE pass as an estate intestate. The Hindu law does not allow 
property to be tied up in perpetuity except in the case of religious and charitable endow- 
ments (y). The same principle applies to transfers inter vivos (gifts). This rule may be 
explained by the following illustration : — 

Illustration. 

A will contains as to the property purported to be bequeathed thereby the following 
directions : — 

(1) that the property shaU not be alienated at all ; 

(2) that six-sixteenths of the net income of the property shaU be applied towards 
the maintenance of the members of the testator’s family and the families of his 
sons, grandsons and their descendants in perpetuity ; 

(3) that the remaining ten-sixteenths should be accumulated and carried to the 
credit of the estate. 

The will is invalid, and the property will descend to the testator’s heirs as on intestacy. 
The above directions show that it was not the intention of the testator to pass the estate 
at all. It is not a case where the testator has expressed an intention to pass the estate, 
and has added a clause against alienation, in which case the clause against alienation 
would be void [s. 393], and the gift of the estate would take effect. In the case put above, 
the will starts with a provision against alienation, and this provision is confirmatory of 
the other parts of the will which clearly show an intention to create a perpetuity (z). 

386. Gift or bequest to a class. — If a gift or bequest is 
made to a class of persons with, regard to some of whom it 
fails by reason of the rules contained in secs. 384 and 385 
above, such gift or bequest fails in regard to those persons 
only and not in regard to the whole class. 


Illustrations. 

(a) A fun^ is bequeathed to A for life, and after his death to ail his children who 
shall attain the age of 25. [The gift to A’a children is a gift to a class]. A survives the 
testator, and has some children living at the testator’s death. Each child of .<4’s living 
at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a 
bequest [sec. 385 (2)]. But A may have children after the testator’s decease, some of 
whom may not attain the age of 26 until more than 18 years have elapsed after the 
decease of A. The bequest to A’s children, therefore, is inoperative as to any child born 
after the testator’s death and in regard to those who do not attain the age of 25 within 
18 years after A’s death, but is operative in regard to the other children of A. 


(y) Shookmoy Cfiandray, MonoharriDassiil88a) | 
11 Cal. 684, 12 I, A. 103; Raikishori v. 
Debendraiiath (1888) 15 Cal. 409, 15 I.A. 

37 ; VuUabkdas v. Oordhandas (1890) 14 I 


Bom. 360 ; Kiimara Asima v, Kumara 
Krishna (1809) 2 Beng. L.R. O.C. 11. 

(z) Ibid, 


Ss. 

385,386 



472 


HINDU LAW. 


S. 386 (b) A fund is bequeathed to A for his life, and after his death to 5, C, D and all 

other children of A who shall attain the age of 25. 1}, 0, D are children of A living 
at the testator’s decease. In all other respects the case is the same as that supposed 
in ill. (a). Although the mention of if, V and D by name does not prevent the bequest 
from being regarded as a bequest to a class, the bequest is not wholly void. It is operative 
as regards any of the children B, C or D, who attains the age of 25 within 18 years after 
X’s death. 


This is a combination of see. 16 of the Transfer of Property Act. 1882, as amended 
by the Transfer of Property (Amendment) Act 20 of 1929, sec. 9 and sec. 116 of the 
Indian Succession Act, 1925, as amended by the Transfer of Property (Amendment) 
Supplementary Act 21 of 1929, sec. 14. Before the amendment, if a gift or bequest to a 
class failed as to any member thereof, the gift or bequest was wholly void. Since the 
amendment, it is not wholly void. It is void only as to those in regard to whom it fails. 
The above illustrations are illustrations (i) and (ii) to sec. 115 of the Indian Succession 
Act as amended by the Supplementary Act. 


Sec. IS of the Transfer of Property Act and sec. 115 of the Indian Succession Act, 
before they were amended as aforesaid, were enacted on the principle of the decision 
in Leake v. Eobinson (a). That principle is thus stated in Theobold on Wills : “ Where 

there is a gift to a class, any members of which may have to be ascertained beyond the 
limits of perpetuity — for instance, to the children of a living person who shall attain 
twenty-five — the whole gift is void.” 


Euh of Hindu law as to gift to a elass and subsequent legislation. — Before the Acts of 
1914, 1916, and 1921, relating to gifts and bequests to unborn persons [sees. 360, 373], 
a gift to a person who was not in existence at the date of the gift was void ; and so was a 
bequest to a person who was not in existence at the date of the testator’s death. This 
proceeded on the principle that a person who was not in existence at the material date 
was incapacitated from taking. Thus if a gift was made by a Hindu to his grandsons, 
and none of them was in existence at the date of the gift, none of them had the capacity 
to take, and the gift was therefore void. But what if a gift was made by a Hindu to 
his grandson S who was in existence at the date of the gift, and to other grandsons 
(brothers of S) who might be bom after the date of the gift, and some grandsons are born 
after the date of the gift ? It is obvious that the grandsons who were born after the 
date of the gift could not take, but could S take ? In some of the earlier cases it was 
held on the analogy of the rule in Leake v. Robinson, that the gift having failed as to the 
other grandsons, it was whoUy void, and that jS too could not take. But it was held 
in later cases and also by the Judicial Committee that the rule in Leake v. Robinson 
was a rule of construction of the English law, and that it did not apply to Hindus, and 
that the incapacity of the other grand3on.s to take did not incapacitate S from talcing, 
with the result that S took the whole of the property which was the subject-mattor of 
the gift (ft). Further, the rule in Leake v. Robinson is confined in terms to cases where 
the members of the class may have to be ascertained beyond the limits of perpetuity. 
But the sections of the Transfer of Property Act and the Indian Succession Act which 
contain the rule against perpetuity did not then apply to Hindus, and Leake v. Robinson 
therefore could not possibly apply to Hindu gifts and bequests. 


(а) (1817) 2 5Ier. 303 

(б) i?c/i Bishetichand v. Mxtssumttl Asmaida 

Koer (1884) 0 All. 500, 11 I.A. 164; 
Rnm Lai Sett v. Kanai Lai Sett (1880) 12 
Cal. 063 ; Bkagabati v. Ealicharan (1911) 
38 Cal. 468, 38 I.A. 54, 10 I.C. 641 
[affirming s.c. in 32 Cal. 992] ; Rani Moni 
V, Radhapra^ad ( 1914) 41 Cal. 1007, 41 I.A. 
176, 23 I.C. 713, (’14) A.PC. 149; Afon- 


jamma v. Padmanabhayya (1880) 12 Mad. 
393 ; Ranganatiha v. Bhagiratki (1906) 20 
Mail 412; ^langaldae v, Tribkuian Das 
(1801) 15 Bom. 652 ; Trihhuvati Das v. 
Gangadas (1894) 18 Bom. 7 ; Krishna Rao 
V. Bcnabai (1896) 20 Bom, 571 ; Ehimji v. 
iXorarji (1898) 22 Bom. 633 ; Advocafr- 
Oeneral v. EarTtiali (1905) 29 Bom. 133, 
155‘156. 



GIFT TO A CLASS- 


473 


shall now observe the course of legislation. First came the Madras Act of 1914. ^ 

It validated gifts and bequests in favour of unborn persons, and thus removed the bar of 386 , 387 

incapacity. It also applied for the first time the rule against perpetuity to cases governed 

by thaL Act. Similar provisions were introduced by the Hindu Disposition of Property 

Act, 1916, and the Hindu Transfers and Bequests [City of Madras] Act, 1921 ; see secs. 360 

and 373 above. The result of all that was that in the case put above grandsons other 

than Sy though not in existence at the date of the gift, could also take under the deed. 

The Indian Succession Act in force when the three Acts were passed was that of 
1865. Sec. 101 related to the rule against perpetuity; it is now sec. 114 of the Indian 
Succession Act, 1925. Sec. 102 related to bequests to a class ; this corresponds to sec. 115 
of the Indian Succession Act, 1925, before it was amended in 1929. Another Act in 
force when the three Acts were passed was the Hindu Wilis Act, 1870. Certain sections 
of the Indian Succession Act, 1865, were made applicable to cases governed by the Hindu 
Wills Act, one of them being sec. 102. Sec. 102 was in the following terms : — 

“ If a bequest is made to a class of persons with regard to some of whom it is inopera- 
tive by reason of the provisions of section 100 or section 101, such bequest is wholly void.'* 

Though sec. 101 was incorporated in all the three Acts, sec. 102 was not, the in- 
tention being to keep alive the rule of Hindu law that if a gift or bequest was made to 
a class of persona with regard to some of whom it was inoperative by reason of the fact 
that they were not in existence at the material date, the gift or bequest failed in regard 
to those persons only and not in regard to the whole class. But the legislature seemed 
to have overlooked the Hindu Wilis Act, and particularly the inclusion in that Act of 
aec 102. This was not noticed until the decision of the Judicial Committee in Soxindara 
Bajan v. Naiarajan (c). The will in that case was governed by the Madras Act of 1914. 

Amongst the properties disposed of by the will were some immoveable properties situated 
in the city of Madras. This attracted the applicability of the Hindu Wills Act. The 
testator died in 1904, leaving three daughters, A, B and G. -.4 had four children, three 
bom before and one after 1904. B had one child bom before 1904, C had six children 
all born after 1904. By this will the deceased directed his trustees to apportion his 
residuary tmst fund into as many equal shares as there were daughters, to pay the income 
from each of such shares to the daughters for life respectively, and after the death of 
each daughter to hold the share appropriated to her “ upon trust for the children of 
such daughter who shall attain the age of twenty-one years.^* The testator was survived 
by the three daughters. After their death a suit was brought by the children of the 
third daughter C against the children of A and B for construction of the will and for 
administration of the estate of the testator. The Judicial Committee held that the bequest 
to the unborn children was invalid under sec. 101 of the Indian Succession Act, 1865 [now 
the Indian Succession Act, 1925, sec. 114], as it offended the rule against perpetuity, and 
that the bequest being to a clasSy and being invalid as to some members, it failed also in 
regard to the children bom before the death of the testator under sec. 102 of that Act 
(corresponding to the Indian Succession Act, 1926, sec. 116, before it was amended in 
1929). In the case under consideration the bequest to the children bora after the tes- 
tator’s death failed not because of the rule of Hindu law that a bequest to an unborn 
person in void, for the Madras Act validated such bequest, but because of the rule against 
perpetuity contained in sec. 101. The bequest being void as to some members of the class 
under sec. 101 it was wholly void under sec. 102. This led to the amendment of sec. 15 
of the Transfer of Property Act, 1882, and sec. 115 of the Indian Succession Act, 1926, 
in the manner stated above. 

387. Failure of prior disposition. — Where a gift or bequest 
fails by reason of any of the rules contained in sections 384 

(c) (1925) 62 I.A. 310, 48 Mad. 906, 92 I.C. 280, (’25) A.PC. 244 



474 


HINDU LAW. 


Ss. 

387^389 


and 385 above, any gift or bequest intended to take effect 
after or upon failure of such prior gift or bequest also fails. 

Illustration. 

A fund is bequeathed to A for his life, and after his death to such of his sons as 
shall first attain the age of 25 for his life, and after the decease of such son to B. A 
and B survive the testator. The bequest to B is intended to take effect after the bequest 
to such of the sons of A as shall first attain the age of 25, which bequest is void under 
sec. 114 of the Indian Succession Act, 1925 [sec. 385 {2} above]. The bequest to B 
is also void (d). 

This is a combination of sec. 16 of the Transfer of Property Act, 1882, and sec. 116 
of the Indian Succession Act, 1925. 

388. Independent and alternative hequests-^ — Where there 
are independent and alternative gifts or bequests, of which one 
is good at the time the document takes effect, and the other 
is void, the former will take effect, and the latter will be 
disregarded (e). W^here a testator made some bequests of 
property in favour of his relations and other bequests for 
charitable purposes and some of the former bequests were 
invalid, the latter were held to be valid as they were separable 
from and not dependant on the former (/). 

389. Grant subject to defeasance ; Executory bequest- — If is 
competent to a Hindu to make a grant of an absolute estate 
defeasible on the happening of a subsequent event. But the 
event must happen, if at all, immediately on the close of a 
life in being, and the gift over must be in favour of some person 
in existence at the date of the gift or at the death of the testator, 
as the case may be ; otherwise, the gift over is void, and the 
absolute estate granted to the first donee remains unaffected {g). 

In cases, however, governed by the Hindu Transfers and 
Bequests Act, 1914, the Hindu Disposition of Property Act, 
1916, and the Hindu Transfers and Bequests [City of Madras] 


(d) Tagore v. Tagore (1872) 9 Beng L.R. 377, 
410, I. A. Sup. Vol. 47, 80 , Soudamxneg 
Dossee v. Jogeah (Jhunder (1877) 2 Cal, 
262 ; Javerbai v. Kablibai (1892) 16 Bom, 
402, in app. from 15 Bom. 326. 

(fl) Uaikishori v. Debendranatk (1887) 15 Cal. 
409, 15 I.A. .37. 

(/) Eayastha Paihsala Allahabad v, Mt. Bhag- 
wall Devi (1937) 64 I.A. 5, (1937) All. 
3, 39 Bora. L.B. 322, 166 I.C. 4, (’37) 
A.PC. 4. 

{g) Soorjeemoneif Doseey v. Denobundoo Mullick 
(1862) 9 M.I.A, 123, s.c. 6 M.I.A. 526; 
KTUtoTomoni v, Narendro (1888) 16 Cal. 
383, 302, 16 I.A. 29 , Bissonaulh v. Bama- 
soonderry (1867) 12 M.I.A. 41, 48 [devise 
held absolute] ; Bhoobun Mohini v, Uur- 
rish Chunder (1878) 4 Cal. 23, 5 I.A. 138 


[held, gift operated as an absolute grant, 
as the event specified did not occur] ; 
Rani Tarokeesar Roy v. Soshi (1883) 9 Cal. 
952, 10 I.A. 51 [case of giit over of a life 
estate] ; Laht Mohan v. Chukkun Lai 
(1897) 24 Cal. 834, 850, 24 I.A. 76 ; Puma 
Rashiv. Ealidhan (1911) 38 Cal. 603, 619, 
620, 38 I.A. 112, 120, 11 I.C. 412 ; Laksh- 
•minarayana v. Valliammal (1911) 34 Mad. 
250, 11 I.C. 767 ; Saragu Bala v. Jyotir 
Moyee (1931) 68 I.A. 270. 59 Cal. 142, 
134 I.C. 648. (’31) A.PC. 179 ; Narsingh 
Rao V. Mahalakshmi Bai(1928) 56 1. A. 180, 
50 AU. 375, 109 I.C. 703, (*28) A.PC. 
156. See also Transfer of Property 
Act, 1882, ss. 28. 30 ; Mt. Rameshwar 
Kuer V. Sheo Lai Upadhya (1935) 14. Pat. 
640, 156 I.C. 33, (’35) A.P. 401. 



executory bequest. 


475 


Act, 1921, the gift over may be made in favour even of a person 
not in existence at the death of the testator. 

llluslraticns. 

(a) A Hindu beq^ueaths bia property to his five sons in equal shares, and directs 
that in the event of any of his sons dying without sons or sons’ sons, his share shall pass 
over to the sons then living or their sons. All the five sons survive the testator. One 
of the sons. A, dies leaving a widow, but without leaving sons or sons' sons. The gift over 
to the surviving sons is valid, and they are entitled to the one-fiJth share of the deceased 
sons to the exclusion of his widow. The effect of the will is to give an absolute estate to 
each son if he dies leaving sons or sons* sons subject to deiesswace in the event of his 
death without leaving sons or sons’ sons. If A had died leaving sons or sons' sons, he 
would have taken an absolute estate which he could have disposed of by will (h), and 
which on intestacy would have passed to his heirs ; Soorjeemoney Dosaey v. Denobiindoo 
Munich (1862) 9 M.I.A. 123 s.c. 6 M.I.A. 526; Chunilal v. Bai Samarth (1914) 38 Bom. 
399, 23 I.C. 645, (’14) A.PC. 60 ; Nomlchand v. ilaneckchand (1921) 23 Bom. L.R. 450, 62 
I.G. 98, (’21) A.B. 25. [It may be observed that any son of the testator may alienate his 
share even before the event happens, but the alienee will in that case take the share 
subject to the defeasance clause : (1921) 23 Bom. L.R. 450, 62 I.C. 98, (’21) A.B. 25.] 

Note. — The case put above was not governed by the Hindu Wills Act, 1870. Had 
it been governed by that Act, the wiU'would have to be construed with reference to sec. 
Ill of the Indian Succession Act, 1865, (now sec. 124 of the Act of 1926) it being one 
of the sections made applicable by the Hindu Wills Act to wUls governed by that Act 
Sec. Ill provides that “ where a legacy is given if a specified uncertain event shall happen 
and no time is mentioned in ike will for the occurrence of that events the legacy cannot take 
effect, unless such event happens before the period when the fund bequeathed is payable 
or distributable.” III. (a) to sec. Ill is as follows: “A legacy is bequeathed to A, 
and, in case of his death, to B. If A survives the testator, the legacy to B does not 
take effect.” 

In the case put in our illustration, the uncertain event on the happening of which the 
one-fifth share of a son is to go to his brothers is the death of the son without leaving 
sons or sons’ sons. Under sec. Ill the rule has been taken from an English case which 
has been overruled by later English cases. The section, it has been held, should be 
applied strictly to cases coming within its scope (i). 

Sec. 124 of the Indian Succession Act, 1926, (sec. Ill of the Act of 1865), is one of 
the sections mentioned in Schedule HI to that Act. Those sections applied in the first 
instance to wills of the classes specified in els. (a) and (b) of sec. 57 of that Act, being 
wills to which the Hindu Wills Act, 1870, applied. Since the Indian Succession (Amend- 
ment) Act, 1929, those sections apply also to other wills executed on or after the Ist 
January, 1927. The Act of 1929 came into force on the let October, 1929. 

A Hindu testator bequeathed a moiety of his estate to his son and provided that 
the other moiety was to be held by the sou and other persona in trust for the son’s male 
issue and further provided that in case of the son’s death without male issue it should 
go to a certain named charitable Institute. The son died without male issue. It was 
held by the Judicial Committee that the gift to the trust took effect on the death of 
the son and that the gift to charity, which was subject to the above condition. Was 
valid ( j). 

(b) A executes a deed of settlement whereby he gives certain property to his daughter 
B absolutely with the condition superadded that the property should revert to A’s heirs 


(A) Bhoobun Mohini v. Hurrisb Chundef (1879) 4 j 
(is!. 23, 5 I. A. 138. I 

(i) Bhupendra v. Amarendra (1916) 43 I. A. 12. 1 


43 Cal. 432, 34 I.C. 892, (’15) A.PC. 101. 

(j) Qada Dhw Mallik v. Opicud Trustee of 
Bengal (1940) 1 Cal. 415, 187 I.C. 108, 
67 I. A. 129, (’40) A.PC. 45. 


S.389 



476 


HINDU LAW. 


Ss. 

389-391 


(c) By a deed of settlement executed in 1875 the settlor created an absolute estate 
in favour of bis wife with a condition that if a son was born to the settlor’s son (whom 
ha had disinherited), the property should go to him. Held that the gift over to the 
grandson being a gift in favour of an unborn person was void, with the result that the 
absolute estate granted to the wife remained unafiected. Had the case been governed 
by any of the three Acts mentioned in the second paragraph of this section, the gift over 
would have been valid (f-)* 

As to Settled Estates in Bengal, see the Bengal Settled Estates Act, 1904. 

390. Gift or bequest by way of remainder. — A grant by way 
of remainder is valid provided— 

(1) tbe grant is to take effect immediately on the close of a 
life in being, and 

(2) it is made to a person in existence at tbe date of tbe gift 
or at the death of the testator as the case may be (1). 

In cases, however, governed by the Hindu Transfers and 
Bequests Act, 1914, the Hindu Disposition of Property Act, 
1916, and the Hindu Transfers and Bequests (City of Madras) 
Act, 1921, a gift by way of remainder may be made in favour 
of an unborn person. 

Illustration. 

Property is bequeathed to A for life, and after hia death to B. Both A and B aro 
in existence at the death of the testator. A takes an estate for life. B takes the re- 
mainder after -4’a death. The bequest to B by way of remainder is valid ; Ranganadha 
v. Bha-girathi (1906) 29 Mad, 412. 


on failure of the male descendants of Here the event on the happening of which the 
defeasance clause is to operate, namely, the indefinite failure of male issue, may not 
take place at B's death. The gift over to -.4*8 heirs is therefore void, and the absolute 
estate granted to B remains unaffected: Baraju Bala v. Joytir Moyee (1931) 68 I.A. 
270. 59 Cal, 142, 134 I.C. 648, (’31) A.PC. 179, 


391. Trust valid for valid purposes.— Trusts are not un- 
known to Hindu law, but tbey can only be sustained to the 
extent and for the purpose of giving effect to those benefi- 
ciary” interests which are recognized by that law. A disposi- 
tion of property which is i^erently illegal, as where the 
donee is not a person legally capable of taWg, or the estate 
which he is given is not recognized by Hindu law, cannot be 
made to take effect by tbe medium of a trust. That which 
caimot he done directly by gift cannot be done indirectly by 


(A) yorendra Nath v. Kamalbatsini JTasi 
(1896) 23 Cal. 863, 23 I.A. 18; hala 
Ramjewan v. Dal Koer (1897) 24 Cal, 406. 
{1) Ranganadha v. Bhagirathi (1906) 29 Mad. 
412 ; Soajumoney Dasuy v. Deenobundoo 


Mulhck (1862) 9 M.I.A. 123, s.C. 0 M.l.A. 
526; Moliiahu v. Mamubai (1897) 21 
Bom. 709, 721, 24 I.A. 93 ; Ram Bahadur 
V. Jager Nath (1918) 3 Pat. 1 J. 109, 45 
I.C. 749, (’18) A.P. 469 \Y B ]. 



GIFT BY WAY OP REMAINDEPv. 


477 


the intervention of a trustee (m). See as to gifts, ss. 357, 359 
and 360, and as to wills ss. 368, 372 and 373. 

392. Condition repugnant to interest created. — Where by 
the terms of a deed or will an absolute estate of inheritance is 
created in favour of a person, any subsequent clause pur- 
porting to restrict that interest is invalid, and the donee will 
take an absolute estate as if the document contained no such 
clause {n). 

393. Condition restraining alienation or partition. — Where 
property is given absolutely to a person, but the transfer or 
will contains a direction that it shall not be alienated (o), or 
partitioned (p), or that it shall be applied or enjoyed in a par- 
ticular mamier (q), such direction is inoperative, and the donee 
will take the property as if the document had contained no such 
direction [s. 362]. 

394. Direction postponing pasrment to donee or legatee.— 
Where a transfer or will confers an absolute estate, but 
directs that the property shall not be made over to the donee or 
legatee until he has attained a certain age beyond the period 
of his majority, such direction is inoperative, and he is entitled 
to the property on attaining majority as if the document 
contamed no such direction. But the direction vdll be valid 
and it will take effect if during the interval the income of the 
property is disposed of in favour of some other person (r) . 

Thus if property is bequeathed to A, a minor, wdth a direction that it shall not be 
handed over to him until he attains the age of 20 years, the direction is inoperative, 
and A is entitled to receive the property on his attaining majority. But if the will con- 
tains a direction that until A attains the age of 20 years, the income of the property 
shall be given to B, then A is not entitled to receive the property until he attains the age 
of 20 years. 


(m) Tagore v. Tagore (1872) 9 Beug. L. R. 377, 

401-402, 1.A. Sup. Vol. 47, 71, 72 ; Ragm- 
dar V. Sham Chund (1881) 6 Cal. 100; 
Eahandas Jrarrfln<ias, in re (1881) 5 Bora. 
154, 173-174. 

(n) Bhaidas v. Bai Qulab (1922) 49 I. A. 1, 46 

Bora. 153, 65 I.C, 974, (’22) A.FC. 193; 
■Raghunath Prasad v. Deputy Commissioner - 
(1929) 56 I. A. 372, 4 Luck. 483, 120 . 
I.C. 641, (’29) A.PC. 283; Saraju Bala , 
V. Jyotir Moyee (1931) 58 I.A. 270, 59 | 
Cal. 142, 134 I.C. 648, (’31) A.PC. 179 ; ; 
Partap Chand v. Mi. Mokhaiii (1933) 14 ! 
Lah. 485, 144 I.C. 651, ('33) A.L. 365 ; ' 
Kandarp Mohan Gosicami v. Akshay- , 
chandra Basu (1934) 61 Cal. 106, 150 I.C. ' 
179, (’34)A.C. 379. 1 

(o) Tagore v. Tagore (1872) 9 Beng. L. R. 377, I 

395, I.A. Sup. Vol. 47, 65: Ashutosh v. t 
Durga (1880) 5 Cal. 438, 6 I.A. 182 ; Ookxtl i 
Nath V, Iss^ir Lochun (1887) 14 Cal. 222 ; I 


Raikishori v. Debendranath (1888) 15 Cal 
409, 15 I.A. 37 ; Chandi Churn v. Sidhes- 
wari (1889) 16 Cal. 71, 15 I.A. 149 ; Laht 
Mohan v, Chukkun Lai (1897) 24 Cal. 
834, 24 I. A. 76; Rameshivar v. Lachmi 
Prosad (1904) 31 Cal, 111; Saraju Bala 
V. Jyotirmoyee (1931) 68 I. A. 270, 
59 Cal. 142, 134 I.C. 648, ('31) A.PC. 179 ; 
Umrao Singh v. Baldeo Singh (1933) 14 
Lah. 353, 143 I.C. 615, (*33) A.L. 201 
ip) Mokoondo Lall \\,Gonesh Chunder (1876) I 
Cal, 104; Raikishori v. Debendranath, 
supra. 

(q) Callv Nath V, Chunder Nath {1882) 8 Cal. 378 ; 

Motxvaha v. AlaraufiaiClSOS) 19 Bom. 647 

(r) Gosavi Shivgar v. Rhett Camac (1889) 13 

Bom. 463 ; Husenbhoy v. Ah7nedb?ioy 
(1902) 26 Bora. 319 [case of Khojas). See 
also (1882) 8 Cal. 378, supra ; Mussammat 
Ram Kuar v. Atma Singh (1927) 8 Lah. 
181, 103 I.C. 506, (’27) A. L. 404. 


Ss. 

391-394 



478 


HINDU LAW. 


Ss. 

394-397 


The mle laid down in this section is based on the decision in Gosling v, Ooslmg («), 
which is the leading English case on the subject. The same rule has been applied to 
cases governed by the Indian Succession Act, 1925 (^). 

395. Gift of income without limit of time. — AVliere a gift 
is made of the income, but the estate given is not in terms 
limited to the lives of the beneficiaries, nor is any line of des- 
cent provided after their deaths, the gift is an absolute gift(t{). 

396. ImmoraT conditions. — A gift to which an immoral 
condition is attached remains a good gift, while the condition 
is void {v). 

397. Direction for accumulation . — {!) Where the terms of 
a tratisfer of propeiiy direct that the income arising from the 
property shall be accumulated either wholly or in part during 
a period longer than — ■ 

(a) the life of the transferor, or 

(b) a period of eighteen years from the date of the transfer, 
such direction shall, save as hereinafter provided [Sub-sec. 
(3)], be void to the extent to which the period during which the 
accumulation is directed exceeds the longer of the aforesaid 
periods, and at the end of such last-mentioned period the 
property and the income thereof shall be disposed of as if the 
period during which the accumulation has been directed to be 
made had elapsed. 

(2) Where the terms of a will direct that the income 
arising from any property shall be accumulated either wholly 
or in part durmg any period longer than a period of eighteen 
years from the death of the testator, such direction shall, save 
as hereinafter provided [sub sec. (3)], be void to the extent to 
which the period during which the accumulation is directed 
exceeds the aforesaid period, and at the end of such period of 
eighteen years the property and the income thereof shall be 
disposed of as if the period during which the accumulation has 
been directed to be made had elapsed. 

(3) This section shall not alfect any direction for accu- 
mulation for the purpose of — 

(i) the payment of the debts of ^e transferor or the tes- 
tator or any other person taking any ipt’erest under the 
transfer or will, or 

(») (1859) .Tohns, 265. (») Ram Samp v. Beta (1884) 6 All. 313, 11 

(() Ltopd-V. Webb (1897) 24 Cal. 44. I.A. 44. Cf. Tranaler of Property Act, 

(u) Madhavrao v. Balabhai (1928) 65 I. A. 74, 1882 8. 25 

52 Bom. 176, 107 l.C. 119, (’28) A. PC. 33. 



ACCUMULATION. 


479 


(ii) tlie provision of portions for children or remoter issue 
of the transferor or of the testator or of any other per- 
son taking any interest under the transfer or will or 

(iii) the preservation or maintenance of the property 
transferred ; 

and such direction may be made accordingly. 

Sub-sec. (jf) of this section is sub-sec. (i) of sec. 17 of the Transfer of Property Act, 
1882, as amended by the Transfer of Property (Amendment) Act 20 of 1929, sec. 10. 
Sec. 17 is one of the sections of Chapter II of the Transfer of Property Act, and that 
Chapter now applies to Hindus also. 

Sub-see. (2) of this section is sub-sec. (2) of s. 117 of the Indian Succession Act, 
1925, as amended by the Transfer of Property (Amendment) Supplementary Act 21 
of 1929, s. 14(3). By s. 14 (4) of the same Act, s. 117 as amended was included in 
Schedule III to the Indian Succession Act, so as to apply to Hindu wills also. 

Sub-sec. (3) of this section is a combination of sub-sec. (2) of s. 17 of the Transfer of 
Property Act and sub-sec. (2) of s. 117 of the Indian Succession Act. 

Both the amending Acts came into force on the Ist April, 1930. All transfers and 
wills executed before that date will atUl be governed by the rule of Hindu law as it was 
before those Acts. We proceed to state that rule. 

Beligious endowments . — ^The rules stated in this section do not apply to religious 
endowments. See sec. 411 A below. 

RuJe of Hindu law before legislation . — ^Whether a direction for accumulation is valid 
or not, is a question which depends upon the facts of each case. No hard and fast rule 
can be laid down, in each case the particular direction mu.st be examined to see what 
the object of the testator was and what the effect of carrying out the direction would be. 
If there is nothing per se illegal in a direction to accumulate made in a transfer inter vivos 
or a will, and if such direction is neither so unreasonable in its conditions as to be void 
against public policy, nor given for the purpose of carrying out an illegal object nor 
in its effect inconsistent with Hindu law, effect should be given to the direction (tu). 

The period during which an accumulation can be validly directed is the period for 
which the absolute vesting of the entire interest can be withheld, or for so long a time as 
that during which the corpus of the property can be rendered inalienable or its course 
or its devolution can be directed and controlled by a testator (ar). 

Illustrations to the above rule. 

(a) Where the object is to create a perpetuity . — Where there is no disposition of the 
benedcial interest in the property of which the income is directed to be accumulated 
and the direction to accumulate is an attempt to create a perpetuity as in the case put 
in the illustration to s. 393, the direction is invalid, and the property will pass as on 
intestacy: Shoolcmoy Chandra v. Monoharri Dassi (y), Kumara Asima v Kumara 
Krishna (z). 

(b) Where the direction to accumulate is repugnant to the grant . — Where there is 
a present gift of property to a person, but the gift is followed by provisions postponing 
payment and directing accumulation, such provisions are invalid, and the donee is 
entitled to receive the property as if there were no such directions in the deed of gift or 
will. The reason is that an absolute gift cannot be qualified by a direction to postpone 


(uj) Rajendra tall v. Raj Coomari (1907) 34 Cal, 
5. See also Benode Behari v. Nistarini 
Dassi (1905) 32 I, A. 193, 33 Cal. 180, and 
the cases cited In the illustrations. 

(a) Watkins v. Administrator-General of Bengal 


(1020) 47 Cal. 88, 93, 56 I. C. 376, ('20) 
A.C. 951. 

(!rt (1885) 11 Cal. 684, 12 I.A. 103. 

(a) (1868) 2 Beng. 1. B. 0. C. 11, 37. 


S.397 



480 


HINDU LAW. 


s$. payment and to accumulate : CaUy Naih v. Chundcr Nath (o) ; Bramamayi v. Jages 
}97, 398 Chandra (fc ) ; JJoIcoondo Lall t. Gonah Chttiidtr (c). 

(c) Accumulation Jor pnyiHcnt oj debts or for benefit of minors. — A direction to accumu- 
late for the payment of debts, or for the benefit of minor donees, is not inTalid : Amnio 
Lall V. Sumomoni (d). 

(d) Accumulation for charitable purposes. — A direction to accumulate the income 
of property for a charitable purpose is not invalid. It has accordingly been held that a 
dnection to accumulate the income of property until it amounted to Rs. 10,000 and then 
to spend the proceeds in feeding the poor is valid ; Bajerulra Lall v. liaj Ooomaj i (e) 
See s. 41 1 below. 


(dd) Accumulation for marriage cxpejises.- — A direction to accumulate for the 
purpose of providing for the marriage expenses of the testator's son is valid : Nafar 
Chandra V. Ratan (/). 

(e) TI'Acrc the direction is in Us effect inconsistent ibith Hindu law. — A Hindu 
bequeathed his property to trustees upon trust to pay a fixed monthly sum to his wife 
during her life, and to accumulate the surplus until the death of his wife. The testator 
also authorised his wife and two other persons to adopt a son, with a direction that 
neither the corpus nor the accumulations were to be handed over to the adopted son 
until the death of his wife. B, alleging that he was adopted to the testator pursuant to 
the authority given by him, contended that the direction for accumulation till the death 
of the widow was void, and claimed immediate possession of the corpus and the accumula- 
tions, subject to the payment to the widow of the monthly sum directed to be paid to 
her under the wiU. Jenkins, J., held that the adoption was proved, but that the direction 
to accumulate was valid and that the plaintiff was not entitled to possession until the 
death of the widow. The learned Judge said : “ It appears to me, on principle that, if 

accumulations are permissible, then m the absence of special provision, the limit must be 
that which doteriiiines the period during which the course or devolution of property 
can be directed and controlled by a testator.” The learned Judge added : “ It is true 

that the object of the testator’s bounty is not ascertained at the. testator's death [for the 
son was to he adopted after his death], but that in itself is not a necessary indication of 
illegal remoteness ” : Amrito Lall v. Svrnomoyc {g). On appeal, it was held that the 
adoption was invalid and it therefore became unnecessary to consider the validity of the 
direction for accumulation. Trevelyan, J., however, said : ‘‘ I cannot see how a di- 

’■"ction to accumulate can he valid unless there be a present gift to support the direction 

I , 0 accumulate Amrito Lall v, Surnomoye (A). The Judicial Committee agreed with 

the Appelate Court that the adoption was invalid and declined to enter upon the other 
question : Amrito Lall v. Surnomoye (i). Referring to the observation of Trevelyan, 

J. , Sir Lawrence Jenkins said in a later case which related to the same will : “ I do not 

clearly understand W'hat the learned Judge here intended to lay dorvn,” and his I,ord- 
ship reiterated the views expressed in the earlier judgment. 

Accumulation to follow capital.- — In the absence of any direction to the contrary it 
is the rule of Hindu law that accumulations go with the capital (j). 


398. Power of appointment. — A Hindu may, by deed or will, 
grant a power of appointment to a person or persons named in 


(O 

hi) 

U) 

(/) 


(1882) 8 Cal. 378. 

(1871) 8 Beng. L K. 400. 

(1875) 1 Cal. 104. 

(181)8) 25 Cal. 662, 691. 

(1907) 34 Cal. 5. 

(1910) 15 C. W. N. 66, 7 I.C. 921. 


(g) (1897)24 Cal. 589, 618. 

(h) (1898) 25 Cal. 662, 673, 690-691. 

(?) (1900) 27 Cal. 996, 27 I. A. 128. 

(j) BU807i>iulky Bamasoondery il$^i7) 12 M.X A. 

41, 60 , Sonatun v. Juffgtitsoondree (1859) 
8 M.I.A 66 ('Where there was a direction to 
the contrary]. 



CAUTION AGAINST APPLYING ENGLISH RULES 


481 


the will. Before the Hindu Transfers and Bequests Act, 1914, 
the Hindu Disposition of Property Act, 1916, and the Hindu 
Transfers and Bequests (City of Madras) Act, 1921, it was 
necessary to the valid exercise of the power that it should be 
exercised in favour of a person who was in existence either 
actually or in contemplation of law at the date of the gift or 
at the testator’s death, as the case might be {k). Since the 
passing of those Acts, the power may be exercised in favour 
even of an unborn person subject, however, to the limitations 
and provisions contained in those Acts [see ss. 383-387], 


Ss. 

398,399 


WTien an appointment is made pursuant to a power in 
favour of two or more persons, and the appointment is invalid 
as to some or one of them, it may still be vabd as to the rest {1). 

Illuatraiion. 

X by hia will givea certain property to A for life, and at hia death to A’a aona, but 
if A diea without male iaaue, then to such peraona aa A may by deed or will appoint, 
A haa no male iaaue. A, in the exorcise of the power, leaves the property by hia will to 
his own daughters C and D to be divided equally between them, C was in existence at 
the death of the testator. D waa born after the death of the testator, C is entitled to a 
moiety of the property. D is not entitled to anything, as she was born after the death 
of X. The share appointed by A to D will go to the heirs of X as on intestacy : Javerbai 
V. Kablibai (1892) 16 Bom. 492. [Under the Hindu Disposition of Property Act, 1916, 
the execution of the power in favour of D, though not in existence at the death of the 
testator, would be valid]. 

The leading case on the subject is that of Motivahn v. Mamubai (m), decided by the 
Privy Council in the year 1897. In that case it was contended that there was no place 
for a power of appointment in the Hindu system oflaw. As to this the Judicial Committee 
said that as X could himself have designated the person who waa to take the property in 
the event of A dying without sons, there was nothing to prevent X from substituting A 
for himself and giving him power to designate the person who was to take In the alucesaid 
event. But to render the gift valid, the taker so designated must have been in existence _ 
at the death of X for he takes the property not from the donee of the power, but from X, 
At the same time the Committee observed that in their opinion the English law of power 
was not fit to be applied generally to Hindu wills. It has already been pointed out that 
in cases governed by the Hindu Disposition of Property Act, 1916, the taker need not be 
in existence at the death of X. 


399. Caution against applying English rules. — “ English 
rules of construction have grown up side by side with a very 
special law of property and a very artificial system of con- 
veyancing .... It is a very serious thing to use such 
rules in interpreting the instruments of Hindus, who view 


(k) Motivahn v. Mamubai (1897) 21 Bom. 709, 
24 I. A. 93 ; Upendra Lai v. Hemchundra 
(1898) 25 Cal. 405; Monorama v. Kali- 
eharan (1904) 31 Cal. 160 ; Brij Lai v. 
S\iraj Bikram (1912) 39 I, A. 150,34 All. 

16 


405, 16 I.C. 92 ; AfoWtn Chandra v. Bara 
KumaH (1915) 42 Cal. 561, 569, 30 I.C. 
798, (’15) A.C. 487. 

(l) Javerbaiv. Kablibai (1892) 16 Bom. 492. 

(m) (1897) 21 Bom. 709, 24 I.A. 93. 



482 


mSDU LAW. 


Ss. most transactions from a different point, think differently and 
399,400 speak differently from Englishmen ” {n). 


400. Gift or bequest to two or more persons. — (i) Where a 
gift or bequest is made to two or more persons, the question 
arises whether they take as tenants-in-common or as joint 
tenants or as coparceners. 

If the donees or legatees take as tenants-in-common, the 
share of each will on his death pass to his heirs by succession. 
If they take as joint tenants, the undivided interest of each 
donee will pass on his death by survivorship. If they take 
as coparceners, the undivided coparcenary interest of each 
donee will pass on his death by survivorship, and, further, the 
male issue of each donee will acquire an interest by birth in the 
property as if it were coparcenary property. [Note that the 
question whether the donees or legatees take as coparceners 
can only arise when they are members of a coparcenary. The 
reason is that a coparcenary is purely a creature of law ; it 
cannot be created by an act of parties (see s. 215)]. 

(2) Where a gift or bequest is made to two or more 
persons who are not members of a coparcenary without specifica- 
tion of shares, it has been held by the Judicial Committee 
that they take as tenants-in-common, and not as joint 
tenants (o). In the course of the argument in that case it was 
contended on the authority of a Madras case (p), that where a 
bequest was made to two or more persons without specification 
of shares, the presumption was that they took the property 
as joint tenants, but their Lordships of the Privy Council 
held that that case was not rightly decided, and said : ‘"'It 

appears to their Lordships that the learned Judges of the 
High Court of Madras were not justified in importing into the 
construction of a Hindu will an extremely technical rule of 
English conveyancing. The prmciple of joint tenancy appears 
to be unknown to Hindu law, except in the case of a coparcenary 
between the members of an undivided family.'” 


Illusiratione, 


(a) A Hindu bequeaths his property to his widow and her son for their maintenance 
'wiih power to them to alienate the property by sale or gift. Here the legatees take as 


(n) Per Wilson, J., in Ham Lai Sett v. Kanai Lall 
Sett (1986) 12 Cal. 663, 678, approved by 
tlie P.C. in Bhagahaii v, Kalicharan (1911) 
38 Cal. 468, 38 I.A. 54, 10 1.C. 641 ; Nara- 
Simha V. ParthoFarathy (1914) 37 Mad. 


199, 222, 41 1 A. 51, 7l, 23 I.C. IGC. 

(o) J ogesicar N arain \ . Ham Chandra Putt (1896) 
23 Cal. 670, 23 I.A. 37. 

ip) Vydinada v. ^i'agammal (1888) 11 Mnd. 258’ 



GIFT TO TWO OR MORE PERSONS. 


483 


tenaiits-in-oommon, and each takes an absolute interest in a moiety of the property, 
■>.0 that uu the death of either of them his or her share will pass to his or her heirs by 
succession (g). 

(b) A Hindu bequeaths his property to his two married daughters without specifica- 
tion of shares. The legatees take as tenanta-in-common, and not as joint tenants (r). 

(c) A Hindu bequeaths his property to his daughter and her husband without 
specification of shares. The legatees take as tenants-in-common (s). 

(3) Where a gift or bequest is made to two or more 
persons who are members of a coparcenary, they nevertheless 
take as tenants-in-common, and not as joint tenants or copar- 
ceners, unless a contrary intention appears from the grant. 

Illustraiions. 

(a) A Hindu executes a deed of gift by which he gives his property to A and B 
who are brothers and members of a joint Hindu family. The Bombay High Court held 
that the donees take as tenanta-in-common, and on the death of either of them his share 
wUl pass to his heirs by successimi. (f). In the course of the judgment Fulton, J., said ; 
“ If an unexpressed intention could be presumed, it would, we think, be more reasonable 
to suppose that the gift was meant to be to the two brothers as coparceners ; but we 
doubt whether such a gift could be made consistently with the principles of Tagore case 
for a gift in coparcenary would purport to create interests in sons and grandsons who 
might be unborn at the time.” 

(b) A Hindu father bequeaths a house to his three sons in these terms : “ There- 

fore. my three sons shall use and enjoy the house from son to grandson and so on in 
succession without power to give as gift or sell the same.” As regards his other proper- 
ties, ho directs the income thereof to be divided among his sons “ in equal shares,” and 
the corpus to bo divided among his grandson after the death of bis sons “ according to 
their respective shares.” One of the sons dies leaving a son, who dies leaving a widow. 
The widow claims a third share of the house, alleging that the three sons took the house 
■ as tenants-in-common. On the above facts it was held by the High Court of Madras that 
the sons took the house as a Hindu coparcenary with rights of survivorship, and that on 
the death of any one of them without leaving male issue and without partitioning the 
property, the property passed to the survivors, and that the widow could claim no share 
in it. Subramania Ayyar, J., said : ” In cases like the present, the question for deter- 

mination is but one of intention to bo ascertained with reference to the terms of the partic- 
ular will. If the grant is to persons who are incapable of forming a joint Hindu family, 
they can of course take only as tenants-in-common. If, on the contrary, the grant is 
to persons who constitute such a family, even then it may be that the prima facie view is 
that they take in severalty and that those who argue in favour of the opposite construc- 
tion have to show some clear foundation for it in the terms of the will. Of course, the 
donees here, the sons, were persons who could be, and were, members of a joint family. . . . 
And as to the terms of the gift they are clear to the effect that the donees were to take 
not in severalty but in coparcenary. That the distinction between the two was perfectly 
clear to the mind of the te.stator is beyond question, for where he wishes them to take 
as tenanta-in-common, he uses apt expressions, as the word ‘ in equal shares ’ in the para- 
graph relating to the income, and ‘ according to their respective shares ’ in the paragraph 


(?) JogeswarNarain v. Rani Chandra Dutt, supra. 
(r) Qopi V. Musaimnat JaWAara (1911) 33 All. 41, 
7I.U. 697. 

(if) Mst. Jio V. Mst, Riikman (1927) 8 Lab. 
219, 100 I.C. 54, (’27) A.L. 126. 

(l> Bai BitoaZi v. Palel Bechardaa (1902) 26 


Bom. 445 ; Kishori Dubain v. Mundra 
Dubain (1911) 33 All. 665, 10 I.C. 565; 
Bahu Bani v. Rajendra Balcsh Singh (1933) 
8 Luck. 121, 60 I.A. 95, 142 I.C. 3, (’33) 
A. PC. 72 ; Ram Piari v. Krishna Piari 
(1921) 43 All. 600, 63 I.C. 301, (’21) A. A. 
50. IQift to daughter’s sous.) 


S.400 



484 


HINDU LAW. 


Ss. relating to the division of the corpus of [the other properties], while with reference to the 

400,401 house under consideration he directs common enjoyment without any possibility of 

division ” (u). 

(c) A and his sons are members of a coparcenary. -4’s brother B bequeaths certain 
property to A and .^’s sons in these terms : “ Items 4, 5, 6, 7, 8 and 9, I bequeath and 

leave to my brother A and his sons.** The legatees, though members of a coparcenary, 
take as tenants-in-common, there being no express words in the will that they should 
take as members of a coparcenary {v). 


401. Gifts and bequests to widows, daughters and other 
females. — [1) Absolute gift and limited gift . — When property 
is given to a female by a deed or wiU, the question frequently 
arises whether the gift passes an estate of inheritance, that is, 
an absolute estate, or merely a limited estate. If a gift made to 
a female, e.g., the mother, daughter, brother’s daughter, sister, 
etc., passes an estate of inheritance, she can dispose of it at her 
pleasure {iv), but not if it passes a limited estate (x). In the 
former case, the property passes on her death intestate to her 
stridhana heirs [y ) ; in the latter case, it passes to the donor’s 
heirs ( 2 ). The same rule applies where a gift is made by a 
husband to his wife, whether the gift be of moveable or of im- 
moveable property. If the gift passes an absolute estate she 
can dispose of the property at her pleasure by act inter vivos or 
by will (a), but not if it passes a limited estate (6). In the 
former case the property passes on her death intestate to her 
stridhana heirs (c) ; in the latter case, it passes to her husband’s 
heirs (d). 


(«) 


(u) 

(w) 


(X) 


(y) 


( 2 ) 

(a) 


Yethirajulti v Mukunlhu (1905) 28 Mad. 
363, 373. See alao Sonaiun v, Juggut- 
soondree (1859) 8 M.I.A. 66 ; BUsonauth 
V. Ba7M80(mderry (1867) 12 M.I.A. 41. 


Janakiram v. Nagamony (1926) 49 Mad. 98, 
93 I.C. 662, (’26) A.M. 273. 

Alul V. Sanyasi (1905) 32 Cal. 1051 (bequest 
to mother] ; Lola Bamjeican v. Do/ Soer 
(1807) 24 Cal. 406 (bequest to daughters 
and brothers’ daughters]; Kollany v. 
Imclimee (1875) 24 W. R. 395 (gift to 
daughter] ; Madavarayya v. Tirlha (1877) 

1 Mad. 307 [gift to daughter]. 

Mahomed Shumsool v. Skewukram (1874) 

2 I.A. 7, 14 Beng. L.R. 220 (gift to 
daughter-in-law] ; Radha Prasad v. Ranee 
Mani (1908) 85 Cal. 896, 38 I.A. 118 
(bequest to daughter]. In both these 
cases It was held that the donee took o 
limited estate only. 

Ramasatni v. Papayya (1893) 10 Mad. 466 
(gift to daughter] ; Basanta v. Ramikshya 
(1906) 33 Cal. 23, 32 I.A. 81 (gift to sister 
— Dayabhaga case]. 

Annaji v. C/iandro6fli (1893) 17 Bom. 503 

Surajmani v. Rabi Nath (1908) 30 All 84 
35 I.A. 17 [will upheld] ; Patek Chand v[ 
Rtip Chand (1916) 43 I.A. 183, 38 All 
446, 37 I.C. 122, (’16) A.PC. 20 [wlli 


upheld] ; Ramachandra v. Ramachandra 
(1910) 42 Mad. 283, 291-292, 52 I.C. 
94 ; (’19) A M. 657 [will upheld) ; Janki v. 
DhaxTon (1897) 19 AU. 133 [will upheld] ; 
Padan Lai v. Tek Singh (1907) 29 All. 217 
[mortgage upheld] ; Vamodar v. Parma- 
nandas (1883) 7 Bom. 155 [will upheld — 
case of moveable property). In some of 
the earlier cases, it was held that a wife can- 
not dispose of immoveable property given 
to her by her husband to the prejudice of 
her stridhana heirs, even if the gift was 
absolute not even after her hiisband’s 
death. That view, It Is submitted, is no 
longer law. The cases above referred to 
are Kotarbasappa v. Chanveroia (1873) 10 
Bom. H. C. 403 ; Gangadaraiya v. Para- 
meswaramma (1860) 6 Mad. H. C. Ill , 
Bhujanga v. Ramayamma (1884) 7 Mad. 
387 ; Nunnu Meah v. SrisAnaewawu (1891) 
14 Mad. 274. See also Rudr. Narain v. 
Rup (1878) 1 AU. 734, at pp. 743-744. 

(5) Jamna Das v. Ranvautar (1905) 27 All. 364 
[mortgage set aside) ; (1891) 14 Mad. 274, 
supra [sale set aside]. 

(c) Resserbai v. Runsraj (1906) 30 Bom. 431, 

33 I.A. 176, 

(d) Rarxlal v. Bai Rewa (1897) 21 Bom. 876. 



GIFTS TO FEMALES. 


485 


(2) Mahomed Shumsool v. Shewukram {1874) 2 I. A. 7, 
14 Beng. L.R. 226. — Wliether a gift passes an absolute or a 
limited estate depends on the terms of the grant in each case (e). 
This is so not only under the Hindu law, but under all other 
systems of law in force in British India. In the case, however, 
of a gift or devise made to a Hindu female by her relations, the 
J udicial Committee has laid down that in construing a deed 
of gift or a will made by a Hindu in favour of female relations, 
the Court is entitled to assume that the donor intended the 
donee to take a limited estate only, unless the contrary appears 
from the deed or will. The basis of the rule is that females as a 
rule take a limited estate only in property inherited by them 
from male relations, and the donor must be presumed to have 
made the gift with that fact present to his mind. The leading case 
on the subject is Mahomed Shumsool v. Shewukram (/). In 
that case their Lordships of the Privy Council said ; “In con- 
struing the will of a Hindu it is not improper to take into 
consideration what are known to be the ordinary notions and 
wishes of Hindus, with respect to the devolution of property. It 
may be assumed that a Hindu .... knows that, as a general 
rule, at all events, women do not take absolute estates of 
inheritance which they are enabled to alienate.” 


Though the rule laid down by the Privy Council applies 
alike to all females who take a limited estate in property 
inherited by them, the Courts in India have, following the spirit 
of the texts cited in sec. 141, drawn a distinction between cases 
where a gift or devise of immoveable property has been made 
by a Hindu husband to his wife, and those where it is made 
by a Hindu to other females. In the former case, that is, where 
a gift is made by a husband to his wife, they start with a pre- 
siunption against the gift being absolute, and hold that the gift 
must be presumed to pass a limited estate, unless by express 
words or necessary implication an absolute estate is expressed 
to be conveyed {g). In the latter case, that is, where a gift is 


(e) Ram ^Varain v. Pearay (1883) 9 Cal. 830. 

(/) (1874) 2 I.A. 7, 14-15, U Beng. L.R. 226, 
231 [bequest to daughter-in-law held, 
to pass a limited estate) , see also Rabutiy 
V. Sibchunder (1854) 6 M.I.A. 1 [deed of 
family arrangement], 

(y) Uanlal v. Bai Rewa (1897) 21 Bom. 376 
[bequest to widow — limited estate] ; 
Jamna Das v. Ramautar (1905) 27 All. 364 
[gift to wife — limited estate] ; Seshayya v. 
Xarasamm (1899) 22 Mad. 357 [bequest s 


to widow — limited estate] ; Hirahai v. 
Lakshmibai (1887) 11 Bom. 573 [bequest 
to widow — limited estate] ; Xunnn Sleah 
V. Krishnaswami (1891) 14 Mad. 274 ; 
I^olUal V. Advocate‘Ge'neral of Bombay 
(1911) 35 Bom. 279, 11 I.C. 547 ; Janki 
V, Bhairon (1807) 19 All. 133 [bequest to 
widow — absolute estate] ; Padam Lai v. 
Tek Singh (1907) 29 All. 217, dissenting 
from Surajmani v. Rabi Nath (1903) 25 
All. 351. 


S.401 



486 


HINDU LAW. 


S. 401 made to other female relations, e.g., a mother {h), they do not 
in all cases start with that presumption. But there is nothing 
in Mahomed ShumsooVs case to justify this distinction. The 
rule there laid down purports to apply to aU females who take a 
limited estate in property inherited by them. In fact, the 
Judicial Committee applied it in a later case where a bequest 
was made to a daughter (i). The case was one from Bengal 
where daughters take a limited estate. It is, therefore, 
difficult to support the distinction made by the High Courts. 
The Madras ‘ High Court apphed this rule in a case where 
a father gave on partition a share to a widowed daughter 
who was without children (k). But the presumption is 
weaker where the property given is moveable property (1). The 
rule was held not applicable to a case where there is no 
gift by the husband to the wife but where the widow got the 
property as a result of a compromise with her relations (m). 
The principle of Mahomed ShumsooVs case applies not only to 
wills mentioned in clauses (a) and (b) of s. 57 of the Indian 
Succession Act, 1925 [see s. 369 above], but to aU other wills (n). 


(3) Gift to a woman as “ malik — In most of the cases 
referred to above, the High Courts interpreted the rule in 
Mahomed ShumsooVs case to mean that a gift of immoveable 
property to a woman caimot be deemed to confer upon her 
an absolute estate of mheritance which she could alienate at 
her pleasure unless the deed or will gave her in express terms 
a heritable estate or power of alienation. But there was no 
warrant for such an interpretation. In fact later decisions of 
the Judicial Committee have made it clear “ that if words 
[are] used conferrmg absolute ownership upon the wife, the 
'wife enjoys the rights of ownership [including a full right of 
ahenation] ivithout their being coyiferred by express and 


(h) Alul V. Sanijasi (1905) 32 Cal. 1051. In 
Anyiaji v, Chandrabai (1893) 17 Bom. 503 
the gift was by a son to his mother and 
the Court started with the presumption 
against the gift being absolute, and 
held that it passed a limited estate only, 
(i) Radha Prasad v Ranee Mani (1908) 35 Cal. 
896, 90, 35 I.A. 118, 129 [held that the 
daughters took a limited estate onlyl. In 
Amynannaina v. Kodanda Rao (1940) Mad. 
223, 190 I.C. 190, ('40) A.M. 210. (1940) 
1 M.L.J 188, It was held that the 
daughter took “ a limited estate of a 
daughter” and the daughter's sons’ intc- 
rest, if any, was not vested remainder. 

(fc) Mangamma v. Doraxya (1037) Mad. 335, 166 
I.C. 59, ('37) A.M. 100. 


(?) Koonjbehari v. Premc7«ind (1880) 5 Cal. 684. 
(j?0 Pandit Adya Shankar Tewari v. Mst. 
Chandravat (1936) 10 Luck. 35, 150 I.C. 
519, (*34) A.O. 265. 

(n) Radha Prasad v. Ranee Mani (1908) 35 Cal. 
896, 903, 35 I.A, 118, 130 [beauest to 
daughter— limited estate] ; Bhoba v. 
Peary Lai (1897) 24 Cal. 646, 650*651 
[bequest to 'Widow — limited estate] ; 
Carulapalhi v. Cota (1910) 33 Mad. 91, 
93, 3 I.C. 475 [bequest to widow— limited 
estate]. In Saroda v. Knsto (1900) 6 
C.W.W. 300, the Court proceeded upon the 
plain meaning of sec. 82 of the Succession 
Act, and held that the bequest to the 
widow was absolute. 



GIFTS TO FEMALES. 


487 


additional terms, unless the circumstances or the context were 
sufficient to show that such absolute ownership was not 
intended ” (o) or that it was possible by the use of words 
of sufficient amplitude to convey in the term of gift itself the 
fullest rights of ownership including the power to alienate 
which the High Court thought were required to be added by 
express declaration (p). These decisions may be divided into 
two classes, namely — 

(a) Where the gift is coupled with a power of ahenation. 

(b) Where the word “ malik ” (owner), or other words 

importing absolute oronership, are used in the 
deed or wiU, 


In case (a), that is, where a gift is coupled with a power 
of alienation, the Court readily infers an intention to grant 
an absolute estate. Thus where a testator bequeathed certain 
property to his daughter and her son “ for your maintenance ” 
with poiuer of making alienation thereof by sale or gift, it was 
held by their Lordships of the Privy Council that each of them 
took an absolute interest in a moiety of the property, and 
the words “ for your maintenance ” did not reduce the interest 
of either of them to one for life only {q). 


The second class of cases is the one where the word “ malik 
(owner) or other words importing absolute ownership are used 
in the deed or will. The word “ malik ” (owner) imports full 
proprietary rights including a full right of alienation unless 
there is something in the context or in the surrounding circum- 
stances to indicate that fidl proprietary rights w^ere not intended 
to be conferred. Hence it has been held that -words of disposi- 
tion in a deed of gift (r) or ^viIl that the donee shall “become 
malik (owner) of all my properties,” or similar words, confer 


(o) Bhaidas v. Bai Gulab (1922) 49 I. A. 1, 7, 40 
Bom. 153, 169, 65 1.C. 974, (’22) A.PC. 193. 
(,p) Ramackandrav. Ramachandra {1919) 45 Mad. 
320, 49 I. A. 129, 07 I.O. 408, (’22) 
A.PC. 80 ; Narsingh Rao v. Mahalakshmi 
Bai (1928) 65 l.A. 180, 50 All. 375, 
109 I.C. 703, (’28) A.PC. 166; Shalig 
Ram V. Charanjit Lai (1930) 57 l.A. 282, 
11 Lah. 645, 128 I.C. 205, (’80) A.PC. 
230 [loarig, i.e., heir] ; Jagmohan Singh v. 
Sn Nath (1930) 57 LA. 291, 128 I.C. 
270, (’30) A.PC. 253 [Rift to wife to be 
enjoyed by her generation after genera- 


tion) : Krishna^cami t. Rama- 

Chandra Rao (1934) 67 Mad. L. J. S21, 153 
I.C, 1005, (’84) A.M. 646 ; Rud- 

rappa v. Rudrava Chantbasappa (1933) 
67 Bom. 1, 142 I.C. 164, (*S2) A.B. 410. 

(?) Jogeswar Karain v. Ramchandra Butt (1896) 
23 Cal. 670, 23 l.A. 37 ; Kesserbai v. Bans- 
raj (1906) 80 Bom. 431, 442, 33 l.A. 176, 
186-187. 

(r) Bishnath Prasad Singh v. Cfuindika Prasad 
KumaH (1983) 56 All. 61, 60 l.A. 56, 142 
I.C. 6, (’33) A.PC. 67. 


S.401 



488 


HINDU LAW. 


S. 401 an heritable and alienahle estate in the absence of a context 
which indicates a different meaning (s). 

It has been stated above that a bequest to a woman as 
“ Tnab'V ” imports full proprietary rights unless there is some- 
thing in the context to qualify it. In the under-mentioned 
cases (i), it was held that the context cut down the absolute 
estate imported by the word “ malik ”, and that the donee 
did not take an absolute estate. 


In Bhaidaa v. Bai Oulab (u) a teatator (1) constituted his wife, “malik” (owner) 
of his property, and (2) provided that she should leave “ whatever property might remain 
after her death ” to two named daughters “ as she liked." Their Lordships of the Privy 
Council held that the widow took an ansolute estate, the second clause not constituting 
a trust in favour of the daughters as the subject-matter — namely, what might remain — 
was uncertain. Similarly where a Hindu transferred by way of gift to his wife “ all my 
zamindari rights ” with power to enter into possession and spend the produce of the 
property ba farzandan naslan bad naalan (lit., with sons generation after generation), 
it was held that the words “ spend the produce ” did not indicate that she was given a 
life-estate only («). The word Malik in a wajib-ul-arz when used with reference to widows 
and qualified by words like ‘ tahayat ’ does not indicate an absolute estate (ir). Where a 
testator gives a full estate to one person, he is not entitled to make a gift over in 
favour of any one else (x). 

(4) Where terms of grant unknown. — There is no presump- 
tion that a gift by a husband to his wife is by way of stridhana, 
in other words, that it is an absolute gift. Therefore, when a 
Hindu widow under grant from her husband had enjoyed the 
revenue of a village for many years, but the terms of the grant 


(a) talit Mohun v. Chukkun Lai (1807) 24 Cal. 
834, 24 I. A. 78, 88-89 ; Surojmani v. 
Ralnnalh (1908) 30 All 84, 35 I A. 17 ; 
Fateh Chand v. Rur Chand 0016) 43 I A. 
183, 38 AU. 446, 37 I.C. 122, ('16) A.PC. 20 
[Malik’O-qabiz^ i.e., owner In possession] ; 
Saaiman V. Shib iVamj/an (1022) 49 1 A. 25, 
35, 1 Pat. 305, 315, 66 I.C. 193, C22) A.PC. 
63 [Malikiyatx ] ; Saraiu Bala v. Jyolir 
MoyeeilQSl) 58 1. A. 270, 69 242. 254 

I.C. 648, (’31) A.PC. 179 [gift to dauffhter 
as malik] ; Eitendra Singh v. Maharaja of 
Darbhanga (1928) 55 I.A. 197, 7 Pat. 500, 
109 I.C. 858, (’28) A PC. 112 (to hold the 
property /rom generation to generation]; Lala 
Ramjeewan v. Dal Eocr (1897) 24 Cal. 406, 
409 ; Aulakki v. Jai Kishan (1918) 40 
All. 575, 40 I.C. 905, (’18) A.A. 256 \Malik 
Mustaguil] ; Kesserbaiv HwnarflidOOG) 30 
Bom. 431, 442, 33 I.A. 176, 186-187 ; Wazir 
Devi V. Ram Chand (1020) 1 Lah. 415, 58 
I.C. 988 [Kullhkhiiyar ummilktal] ; Mohan 
Lai V. Niranjan Das (1921) 2 Lah. 175, 60 
I.C. 619, ('21) A.L. 11 [Bialik] ; Ritendra 
Singh v. Rameshwar Singh (1925) 4 Pat. 
610, 87 I.C. 849, ('25) A.P. 625 (transfer to 
wife of “ all my zamindari rights " with 
power to enter Into possession and spend 
the produce of the property 6a farzandan 
naslan badnaslan, .e., with sons generation 


after Reneration] ; Thakur Jagmohan v. 
Musammai Sheoraj (1928) 3 Luck. 19, 
100 I. C. 593, ('28) A.O. 49 (F.B ] ; 

Ram Kuar v. Atma Singh 
(1927) 8 Lah. 181. 103 I.C. 506, (’27) 
A.L. 404 ; Kamla Prasad v. Murli Manohnr 
(1934) 13 Pat. 660, 152 I.C. 446, (’34) A.P. 
398, Maim Maly.Meheri .ffuTUcaf (1940) 
All. 416, 189 I.C. 600, ('40) A.A. 311; 
Saripada OjTut v. Ichhamayee Devi (1944) 
23 Pat. 404. 

(t) Mahotned Shnmsool v. Shewukram (1875) 
2 I.A. 7, 14 Beng. L.R. 220, Motilal 
V. Advocate'General of Bombay (1911) 
35 Bom. 279, 11 I.C. 547 [widow’s estate] ; 
MUkibai v. Meherbai (1922) 46 Bom. 162, 
64 I.C. 397, (’22) A.B. 170, [life-efitate] ; 
Afihurfi Singh v. Bisesivar (1922) 1 Pat. 
205, 65 I.C. 977, ('22) A.P. 362 (widow’s 
estate] ; Basant Kimar Basu v. Ram- 
Shankar Roy (1932) 59 Cal. 869, 138 I.C. 
8R2, ('32) A.C. 600. 

(«) (1922) 49 I.A. 1, 40 Bom. 153, 65 I.C. 974, 
('22) A.PC. 193. 

(tj) HiUndra Singh v. Rameswar Singh (1925) 
4 Pat. 510, 519, 87 I.C. 349, (’25) A.P 625. 
I (w) Tirbeni Sahai v. Ramsingh (1938) 13 Luck. 
! 230, 167 I.C. 926, (’37) A.O. 361. 

1 (x) Malru Mai v. Maheri Aunutar (1940) All. 
1 416, 1891 C. 597,('40) A.O. 311. 



GIFTS TO FEMALES. 


489 


were unknown, and the widow claimed the compensation 
awarded for the village under the Land Acquisition Act, 1894, it 
was held by the Privy Council that there being no evidence to 
show that the grant was absolute, she had failed to estabhsh an 
absolute title {y). See sec. 140 above. 

Braja Kisora v. Kundana Bevi (1899) 22 | Papayya (1893) 16 Mad. 466 good 

Mad. 431, 26 I.A, 66. See Ramasamx v. I law). 


S.40i 



490 


CHAPTER XXI. 

RELIGIOUS AND CHARITABLE ENDOWMENTS. 

Ss. 404. Endowments.— A Hindu who is of sound mind, and 

404, 405 not a minor, may dispose of his property by gift or by will 
for rehgious and charitable purposes such as the establishment 
and worship of an idol (z), feeding Brahmans and the poor (a), 
performance of religious ceremonies like sraddha, durga pujah 
and lukshmi pujah (b), and the endowment of a university (c) 
or an hospital {d). When the question is whether the endow- 
ment is real or fictitious the mode of dealing with it by its donors 
and successors is an important element for consideration (e). 

Doubt as to certain gifts. — The High Court of Calcutta has expressed a doubt as to- 
■whether gifts to Pundits holding tolls for learning in the country at the time of the Durga 
Pujah, or for the reading of the Mahabharat and Pooran, or for the prayer of God during 
certain months are valid (/). 

Superstitious uses not forbidden. — The English law relating to superstitious uses does 
not apply to Hindu religious endowments. Thus a gift in favour of an idol, or for the 
performance of the worship of a deity is valid according to the Hindu law, though it may 
not bo valid according to the English law (g). Dispositions for religious purposes are 
highly favoured by Hindu law, and the leaning of the Courts also is in the same direc- 
tion. Dedication of property by a Hindu to a deity is not only latviul, but commendable 
in a high degree from the Hindu point of view {h). 

405. Gift to dliaram void. — A gift or bequest to dharam 
is void for vagueness and uncertainty ; so also a bequest for 
good work (i). The objects meant by that word are too 
vague and uncertain for the administration of them to be 
under the control of a Court {j). Where the bequest is for 
dharam, dharamashala and Sanskrit education, the bequest 
for dharam being void, the whole is void (k). 

It is a maxim of equity, that the execution of a trust shall be under the control 
of the Court. The trust therefore must be of such a nature that it can be under that 
control. For that purpose it is necessary that the subject and object of the trust must 
both be such as can be ascertained by the Court. If the subject or object cannot be 
ascertained, the trust cannot be enforced by the Court, and it is void {1). In the case 


( 2 ) Bhuvati Nalh v. Barn Lai (1910) 37 Cal. 128, 
3 I.C. 642 ; Ekusalchand y. Makadfvgiri 
(1875) 12 Bom.H.C.214 

(а) Dwarkanath v. Burroda (1870) 4 Cal. 443; 

Rajendra Ball v. Raj Koomari (1007) 34 
Cal. 6; Manor<ima v. Kalicharam (1904) 
31 Cal. 166. 

(б) PrafuUa v. Jogendranath (1905) 9 C.W.N. 

620 ; Lakskmishankar v. Fav'nafA (1802) 0 
Bom. 24. 

(c) Afanorajwa V. KaHcAaran (1904) 31 Cal 166. 
(<i) Fanmdra v. Adm.'Gen. of Bengal (1901) 8 
C.W.N. 321. 

(e) Chaturbhuj Singh v, Sarada Charan Guha 
(1932) 11. Pat. 701, 141 I.C. 157,('33) A.P.6. 
(/) (1879) 4 Cal. 443, supra. But see In re 

Darling {1896)1 Ch.60. 

({ 7 ) Juggut Mohini v. Sokheermoneff (1871) 14 
MI. A. 239, 801-802; Kushatchand v. 
Mahadevgiri, supra. 

(h) (1910) 87 Cal. 128, 130-187, 141, 3 I.C. 642, 


supra. 

(i) Cauri Shankar ds Ors. v. Mohanlal (1940) 
15 Luck. 674, 187 I.C. 597, (’40) 276. 

{]) Runchordus\.Parvatiba%{1699) 23 Bom. 725, 
20 I.A. 71 afflrmlrie (1897) 21 Bom. 646. 

(A*) Narain Das v. Brij Lai (1933) 14 Lah. 827, 
146 I.C. 1013, (’38) A.L. 833. 

(0 Aforice v. The Bishop of Durham (1804) 10 
Ves, 522 [objects of beDCvolence ox liberal- 
ity] ; In Tc Rvland (1881) W.N. [Eug.] 
173 [charitable or benevolent purposes] ; 
In re Macduff (1896) 2 Ch. 451 (purposes, 
charltabJo or philanthropic] ; Blaitv. Dun- 
can [1902] A.C. 37 [such charitable or 
public purposes as my trustee thinks 
proper]; uunter\. AfL-Oen. (1899] A.C. 
300 ; Grimond v. Qrimond (1005) A.C. 
124. As to what are charitable objects, 
see the jud^ent of Lord Macnaghten in 
The Commissioners of Income Tax v. 
Pcmtfrf{1891] A.C. 681, at p. 683. 



RELIGIOUS AND CHARITABLE ENDOWMENTS. 


491 


of a gift to dharam the Judicial Committee observed in Eunckordaa v. Parvatibai (m), 
that the objects which can be considered to bo meant by that word are vague and 
uncertain. In Wilson’s Dictionary the word dharam is defined to be law, virtue, legal 
or moral duty. Relying upon this definition of dharam, the Judicial Committee held 
that the word dharam was as vague as the words “ purposes charitable or philanthropic ” 
which, on account of their vagueness, render a trust for those purposes void in the 
English law(ii). Gifts for “charitable or other purposes” or gifts expressed in other 
alternative terms are not charitable ; for they may be executed without any part of 
the property being applied to charitable purposes (o). Thus a gift for “ charitable 
or benevolent purposes ’ ’ is void (p). Applying the above principles it has been held that a 
trust for saratcam [good work] {q), a trust for “ purposes of popular usefulness or for pur- 
poses of charity as may be approved by the trustees ” (r), a trust for spending money “in 
proper and just acts for the testator’s benefit ” (s), and a trust for disposing of the residue 
‘‘ in a righteous manner, in a pious and charitable way, as may appear advisable to all 
my three executors, and in such manner that people may speak well of me and that all 
my three heirs may acquire great fame ”(<)» are all void. Similarly in ultimate residuary 
gift to any agnate, and failing agnates to any Brahmin who would live in the testator’s 
ancestral house, has been held to be void (it). A direction to trustees to pay a certain 
sum of money at thoir discretion towards dispensaries, hospitals, charitable societies, 
schools or any students’ association, feeding of the poor, etc., marriage upanayan, etc., 
excavation and consecration of tanks, etc., or in the construction of ghats or maths, 
has also been held to be void (ii) But a gift to sadavarai to be established at a definite 
place is valid (w), A gift to “such charities as the trustees may think deserving,” is 
also valid {x) ; and so also a gift with power to trustees to give away the property “ in 
chatiiy in such manner and to such religious and charitable purposes as they may 
in their discretion think proper ” {y), 

A gift “for the performance of ceremonies and giving feasts to Brahmans” is not 
void for uncertainty ( 2 ). Nor is a devise of property to executors upon trust to distribute 
the same among the testator’s poor relations, dependants and servants (a). 

A gift for spreading of Hindu religion is void (6). There is a conflict of opinion 
whether a gift for the spread of the Sanskrit language is void for uncertainty (c). 

When there is a bequest for feeding the poor — a bequest which is valid in law — 
the fact that it is referred to in a later part of the same will as “ dharam ” does not make 
it invalid {d). 


(Jrt) (1899) 23 Bom. 725, 26 I.A. 71. 

(7i) Runchordas v. Parvatibai (1899) 23 Bom. 
725, 26 I.A. 71 ; Parthasarathy v. 

Thir\ivengada{l^Ql) 30 Mad. 340[i3Aarawl; 
Qangabai v. Thavar (1803) 1 Bom. H.C. 71 
[Dharam ] ; Advocate-Ocneral v. Damodhar 
(1852) Perry's Oriental cases 526 
[Dharam] ; Citrsandas v. Vundravandaa 
(1890) 14 Bom, 482 [Dharmada] ; Devshan- 
kar v. Motiram [1894) 18 Bom. 136 [Dhar~ 
mada]. See also V enkatanarasimha v. 
Subba Rao (1923) 46 Mad. 300, 73 I.C. 
991, (’23) A M. 376. 

'( 0 ) Halsbury, Vol. IV, p. 146, art. 230. 

(p) (1881) W. N. [Eng,] 173, supra. See 
also Re Sarbinson (1902) I. II. 103 ; 
Re Sidney (1908) 1 Ch. 488. 
ig) Bai Bapi v. Jamnadas (1898) 22 Bom. 774. 
(r) Trikumdas v. Baridas (1907) 31 Bom. 583 ; 
Jamnabai v. Dharsey (1902) 4 Bom. L.R. 
893 

<«) Gokool Nath v. Issur (1887) 14 Cal. 222. 


(0 Nanalal v. Uarlochand (1890) 14 Bom. 476, 
479. 

(w) Shayama Charaix v. Sorup Cluindra (1912) 17 
O.W.N, 39, 14 I.C. 708. 

(v) .Sarat Chandra v. PraXab Chandra (1913) 40 
Cal. 232, 21 I.C. 194. 

(to) yiorargv v. Nenbai (1893) 17 Bom. 351. 

(») Smith V. Massey (1906) 30 Bom. 600; Gor^ 
dhandas v. Chunnilal (1008) 30 AU. Ill ; 
SarbomungoUi v. Mohaidronaih (1879) 
4 Cal, 508. 

(y) Parvaii v. Ram Barun (1904) 31 Cal. 895 

(z) Lakshmishanker v. Vajnath (1882) 6 Bom. 24. 
(a) Manorama v. Kali Charan (1903) 31 Cal. 166. 
(&) (1923) 46 Mad. 300, 73 I.C. 991, ('28) A.M. 

376, supra. 

(c) (1923) 46 Mad. 300, 314-315, 73 I C. 991, 

(’23) A.M. S76 [Spencer, J.l, 325-346 
[Devadoss, J.), supra. 

(d) Vaidyanatha v. iSu>amina<Aa (1924) 47 

Mad. 884, 51 I.A. 282. 82 LC. 804, ('24) 
A. PC. 221. 



492 


HINDU LAW. 


Ss. 

406,407 


406. Subject of endowment.— A Hindu may dedicate for 
religious and cliaritable objects all property wbich he can 
validly dispose of by gift or by will [s. 357 and s. 368]. 

There is nothing to prevent a Hindu from dedicating the whole of his property for 
religious and charitable purposes (e). 

407. Endowment how created. — (1) No writing is neces- 
sary to create an endowment {/), except where the endowment 
is created by a wall, in which case the will must be in writing 
and attested by at least two witnesses, if the case is governed 
by the Indian Succession Act, 1925, s. 57 [s. 369 above]. An 
entry in the account of a firm of money-lenders showing that 
the firm is indebted to the temple followed by crediting of 
interest does not create an endowment (g). 

(2) A Hindu, who wishes to estabhsh a religious or chari- 
table institution, may, according to his law, express his purpose 
and endow it. A trust is not required for that purpose. All 
that is necessary is that the rehgious or charitable purposes 
should be clearly specified, and that the property intended for 
';he endowment should be set apart for or dedicated to those 
purposes. Even in the case of a dedication to an idol, which 
cannot itself physically hold lands, it is not necessary, though 
it is usual, to vest the lands in trustees. Nor is it necessary 
that there should be any express words of gift to the idol (h). 
No religious ceremony such as sankalp or saniarpan is necessary 
and a clear and unequivocal manifestation of intention to 
create a trust and vesting of the same in the donor or another 
as a trustee is enough to constitute dedication (?i). 

The Indian Trusts Act, 1882, s. 1, — ^The Indian Trusts Act, 1882, does not apply ta 
public or private religious or chantable endowments (j). 

The Transfer of Property Act, 1SS2, s. 123. — It has been held by the High Court 
of Madras that a dedication of land for a public temple is not a gift within the meaning 
of sec. 122 of the Transfer of Property Act, 1882. The provisions, therefore, of sec. 123 
of the Act, which require a gift of land to be effected by a registered instrument, do 
not apply to such a dedication Ik). 


(e) See Sir F. MacNaghten’a Considerations on i 
Hindu Law, p. 335. 

(/) Mvddun Lai v. Komul Bibee (1867) 8 W, R. 
42 ; Rainalinga v. Sitachidambara (1919) 
42 Mad. 440, 49 I.C. 742, ('19) A.M. 809 ; 
Pallayya v. RamanadhantUu (1903) 13 
Mad. L. J. 364; Gangi Reddi v. Tammx 
Reddi (1927) 64 I.A. 136, 50 Mad. 421, 
101 I.C. 79, ('27) A PC. 80, on appeal 
from (1922) 45 Mad. 281, 70 I.C. 337, 
(’22) A.M. 230. 

(ff) Sooniram Ramniranjandass v. Alagu Nachi- 
yar Koil (1939) Rang. 59 
{h) ManoTiar v. Lakhmiram (1888) 12 Bom. 247, 
263 ; BkuggobuUy v. Gooroo (1898) 26 Cal. 


112, 127 ; Prafulla v. J ogendranalh (1905) 
9 C W N 528, 534 ; V enlatanarsimha v. 
Subba Rao (1923) 46 Mad. 800, 73 I.C. 
991, (*23) A.M. 376. 

(i) Prem Nath v. Uari Ram (1935) 16 Lah. 85, 

154 I.C. 229, (’34) A.L. 771 , Jax Dayal v. 
RuTnsaran Das (1938) Lah. 704. 

(j) Gopu V. Sami (1005) 28 Mad 517. jVara- 

simha V. Veiikatalmgum (1927) 50 Mad. 
687, 103 I.C. 302, (’27) A.M. 636 [F.B ]. 
(fc) Pallayya v. Ramanadhanvlu (1903) 13 Mod. 
L.J. 364 ; Narasimha v, V enkatalinguin 
(1927) 50 Mad. 687, 103 I.C. 302, (’27) 
A.M. 636 (F.B ], supra. 



ILLUSORY ENDOWMENTS. 


493 


Revocation of endowment . — A valid endowment onee created cannot be revoked by 
the donor (1). 

407A. Illusory endowments. — (I) The mere execution of 
a deed, though it may purport on the face of it to dedicate 
property to an idol, is not enough to constitute a valid endow- 
ment ; for the real object of the executant may be to defraud 
creditors, or to defeat the provisions of the ordinary law of 
descent, or to restrain alienations and keep the property in 
perpetuity in the family. It is necessary for the validity of a 
deed of endowment that the executant should divest himself of 
the property. Whether he has done so or not, is to be determined 
by his subsequent acts and conduct. Thus, if the profits of the 
property are appropriated by the executant to his own use, 
and not to the worship of the idol, and his subsequent dealings 
with the property show that he did not intend to create an endoiv- 
ment, the dedication will be inoperative, and the property 
cannot be treated as debutter, i.e., belonging to the idol. The 
property will still continue to be his, and it may be attached in 
execution of a decree against him (m). Similarly, if a Hindu 
purchases property in the name of his idol, without setting up 
the idol for public worship and without appointing priests for its 
•worship, the property does not become the property of the idol, 
but remains his own private property (n). 

(2) Where there is no real dedication of property for 
the worship of an idol, but only an attempt to create a perpe- 
tuity in favour of the settlor’s descendants, the gift to the idol 
is void (o). The mere fact, however, that the members of the 
settlor’s family are nominated as Shebaits or mutawallis of 
the temple and that they are to be remunerated out of the 
income of the property is no ground for holding that the 
dedication is not real, provided the remuneration is reasonable 
having regard to the income of the property {p). 

408. Complete dedication— absolute grant in favour of 
charity.. — A dedication of property to rehgious or charitable 


(l) Dasami v. Param (1920) 51 All. 621, 116 

I.C. 433, (’29) A.A. 315. 

(m) Watson and Co. v. Rantchund {1891) 18 Cal. 

10 ; Konivar Dooryanath v. Ramchunder 
(1877) 2 Cal. 341, 349, 4 1.A. 52 ; Siippamal 
V. Collector of Tanjore ( 1889) 12 Mad. 387 ; 
Ram Dhan v. Prayag{L921) 43 All. 503, 62 
I.C. 862, (*21) A.A. 37 ; Siri Thakur v. 
Atkins (1919) 4 Pat. L .T. 533, 53 I.C. 106, 
(’19) A. P. 442; Bhekdfiari Sinyh v, 5riilam- 
cJutnderji (1931) 10 Pat. 388, 136 I.C. 
290, (’31) A.P. 275. 

(«) Rrojosoondery v. Luchmee (1873) 20 W.R. 


95 (P.C). 

(o) Promolho v. Radhika (1875) 14 Beng. L R. 

175 ; Sri Tkakur^i v. SuftWeo SinpA U920) 
42 All. 395, 58 I.C. 683, (’20) A.A 
63 [F.B.] 

(p) Jadu JVath Singh v. Thakore Sita Ramji 

(1917) 44 I.A. 187. 39 All. 663, 42 I.C. 225, 
(’17) A. PC. 177 ; Chandi Charan v. Pulal 
Chandra (1927; 54 Cal. 30, 98 I.C. 684, 
(’26) A.C. 1083 ; Ishivari Rhuvaneshtcari 
Thakurani v. Projonath Dey (1937) 64 
I.A. 203, (19,37) 2 Cal. 447, 39 Bom. L.K. 
933, 108 I.C. 705, (’37) A.PC. 185. 


Ss. 

407.408 



494 


HINDU LAW. 


Ss. uses may be complete, or it may be partial. The question 
408, 408A wbetber it is complete or partial depends on the construction 
of the instrument of grant as a whole (g'). 

When there was no formal dedication of a bathing ghat 
and the plaintiff (or his predecessors) acted as owners and 
not as Shebaits m effecting repairs and levying tolls it was 
held that the plaintiff is the owner and that there was no 
dedication (r). 

Where the whole property is dedicated absolutely to 
the worship of an idol, and no beneficial interest in it is given 
to any person, the dedication is said to be absolute and 
complete In such a case the property is held by the idol— 
though it is only in an ideal sense that property is so held — ■ 
and it cannot be ahenated except in the cases mentioned in 
section 415 (s) 


408A. Partial dedication— charge in favour of charity.— 
WTiere by the grant a mere charge or trust is created in favour 
of an idol, the dedication is said to be partial or qualified 
In such a case the property descends, and is alienable and 
partible, in the ordinary way ; but subject always to the trust 
or charge in favour of the idol {t). Where the surplus income, 
after the expenses of worship and ceremony were met, was 
to be invested in houses, for the residence of the settlor’s des- 
cendants, it was held that there was no complete dedication (?«) 


In determining whether the will of a Hindu gives the estate to an idol subject to a 
charge in favour of the heir of the testator, or makes the gift to the idol a charge upon 
the estate, there is no fixed rule depending on the use of particular terms in the will ; 
the question depends on the construction of the will as a whole. Thus although a will 
provides that the property of the testator “shall bo considered to bethe property of’* 
a certain idol, the further provisions such as that the lesidue after defraying the expenses 


(g) Pande Ear AaraiH > Surja Eunuari (1921) 
48 I A 143, 43 AU 291. 63 I C 34, ( 21) 
4 PC 20 Ehekdhari Singh v Sn 
Ranichandern (1931) 10 Pat 388, 135 
I C 290, ( 31) A P 275 

(r) jitoharanx Eemantha Kuman v Caufi 
i>hankar Teiian (1941) All 401, 193 
1 C 882, Q8I A 53 ( 41) A PC 38 
(i!) Jagadindra v Eemanla (190o) 32 Cal 
129, 31 I A 203, Padu Aath Singh v 
Thakur Sxla Ramji (191“) 44 1 A 187 39 
All 533, 42 I C 225, ( 17) A PC 177, 
GancsA V (1891) 15 Bom 

625 , Jf?a;endra v Sham Chund (1881) 6 
Cal 106 , Bhuggobuily v Gooroo (1898) 
25 Cal 112 , Saihxanama v Saravanabagi 
(1805) 18 blad 266 , Chcmdi CJuiTav, v 
BnUil Chandra (1927) 54 Cal 30. 98 I C 
634, ( 26) A C. 1083 

(0 (190d) 32 Cal 129. 31 i. A. 203, supra, 
Sonaiun \^J^^gg^UBoondree{Vi^Q) 8M I.A, 


(jO liimCoonwry Jogander iSath{\bl'^) 
4 Cal 66, AshutoBh V Doorg t Chum 
(1880) 6 Cal 4J8, 6 1 A 182, Kulada 
Prasiid \ KaU Das (191o) 42 Cal 536, 
30 I C 899, ( 14') A C 813 lilahivi Chandra 
\ Z7anf.ffu7mjn(1915)42Cal 561, 30 I C 
798, (15) AC 487 , Gopal Lai Sett v 
Puma Chandra Bcsak (1022) 49 I A 100, 
49 Cal 459, C7 I C 501, { 22) A PC 253, 
(1921) 48 I A 143 43 All 291, 63 I C. 
34, ( 21) A VC 20, supra , (1931) 10 Pat 
388 136 I C 290,( 31) 4 P. 17b, supra, 
Parshudi Lai v. Bripnohanlal (1036) 11 
Luck 575, 159 I C 117, (36) A 0 52 
(u) Surendra Krishna Bay v Shree Shree Ishwar 
Bkubaneshivari Thakuram (1933) 60 Cal 
54 144 I C 792 ('33) A C 295 , Ishuan 
Bhuianeshuari Thakuram v Brojonatha 
Dey 64 I A 203, (1937) 2 Cal 447, 39 
Bom L R 933. 168 I C 765, (’37) A PC. 
185 



DEDICATION. 


495 


of the temples “ shall be used by our legal heirs to meet their own expenses,” and the 
circumstances such as that in respect of the ceremonies to be performed the expenditure 
was 6xed by the will and would absorb only a small proportion of the total income, 
may indicate that the intention was that the heirs should take the property subject to a 
charge for the performance of the religious purposes named {v), 

409. Application of profits ,of property— evidence of dedica- 
tion. — (i) Where there is no instrument of grant, the mere 
fact that the profits of any land are being used for the support 
of an idol is not proof that that land formed an endowment 
for the purpose ; but where there is apparently good evidence 
going back for a long period, e.g., for more than half a century, 
that the land was given for the support of an idol, proof that 
from that time the profits had been so expended would be 
strong corroboration {w). 

The fact that the deceased karta of a joint Hindu family 
regularly paid the expenses of a charitable institution out 
of the profits of a family property, those expenses however not 
exhausting the whole of those profits, does not establish a 
dedication of the property to the charity {»). 

In the case last cited the Judicial Committee while reversing the decree passed 
by both the Subordinate Judge and the High Court, observed that the Subordinate 
Judge had failed to notice the distinction between meeting of the expenses of a charity 
out of a particular property, and applying all the receipts of that property to the charity. 

(2) Though the mere fact of the profits of any land 
being used for the support of an idol may not be proof that the 
land formed an endo^vment for the purpose, yet it is a fact 
that might well be taken into consideration in cases where the 
intention of the founder is to be gathered from an ancient 
document expressed in ambiguous language (y). In the 
construction', again, of such a document evidence is admissible 
as to the manner in which the property has been possessed 
and used (z) . 

410. Bequest to idol not in existence at testator’s death.— 
The principle of Hindu law which invalidates a bequest other 
than to a person in existence at the death of the testator 
[s. 372], does not apply to a bequest to trustees for the estab- 
lishment of the image of a deity after the death of the testator. 

(v) Pande JS<ir Narain v. Surja Kunwari (1921) 

48 I.A. 143, 43 All. 291, 63 I.C. 34 ; 

Parshadi Lai v. Brijmohanlal (1936) 11 
Luck. 575, 169 I.C. 117, (’36) A.O. 52. 

(tr) Muddun Lai v. Sreemutty Komul 2iibec{1867) 

8 W. U. 42, 44 ; Kontvar Voorganath v. 

Ram Ohunder (1877) 2 Cal. 341, 349, 4 
L. A. 62. 


ifT) uangi aeoax v. Tanmi neaai 04 i.a. 

136, 60 Mad. 421, 101 I.C. 79, (’27) A. 
FC. 80, reversing on this point same case 
in (1922) 45 Mad. 281, 70 I.C. 837, (’22) 
A.M. 230. 

(«) Abhiram v. Shyama Charan (1909) 36 Cal. 
1003, 1012, 36 I.A. 148, 4 I.C. 449. 

tz) Kulada Prosad v. Kali Das (1916) 42 Cal. 
636. 543-544, 24 I.C. 899, (*14) A.C. 813. 


Ss. 

408A.410 



496 


HINDU LAW. 


St. Such a gift is valid, though the image is to be established and 
4iO>411A consecrated after the testator’s death {a). Similarly a dedica- 
tion of immoveable property by means of an Arpannama to a 
number of deities some of which were installed at the date of 
the disposition are valid (b). 

Illnsiraiion. 

A bequeaths his property to his executors upon trust to establish after his death 
an image of the goddess Kali in the name of his mother, and to devote the income of the 
balance to the worship of the goddess. The bequest is valid, though the image is to be 
installed for the first time after the testator’s death. See secs. 359 to 362, and secs. 
375 to 378. 


The idol must be specified. — The dedication must be to a particular deity. A dedica- 
tion to “ the Thakurji in my Thakurdwara ** without mentioning the particular Thakurji 
to whom the bequest is to be given, is void for uncertainty (c). 

Mniilaticm of idol. — The destruction or mutilation of the image does not affect the 
endowment. A new image may be established, and the endowment kept up (d). The 
actual installation of an idol in a temple or the construction of a temple for that purpose 
is not absolutely necessary for validating a settlement in favour of the idol (e). 

411. Endowments and rule against perpetuities.— (i) A 
dedication of property for a public, religious or charitable 
purpose is not invalid because it transgresses the rule which 
forbids the creation of perpetuities. The rule against perpe- 
tuity apphes to gifts and bequests in favour of private 
individuals [s. 385]. It does not apply to religious and 
charitable endowments (/). 


(2) Where the estate created by a grant is in its nature 
secular, the mere fact that the motive for the grant was religious 
does not constitute it a religious endowment, so as to exempt 
it from the rule against perpetuities (g). 

At actuated by religious motives, makes a gift of certain property to B and C, both 
Brahmins, subject to the condition that they skovld not aiienate the property and that 
it should be enjoyed by them and their heirs /or ever. The restraint against alienation 
is void, and B and C take the property absolutely, 

411A. Endowments and directions for accumulations. — The 
rule stated in sec. 397 as to directions for accumulations does 
not apply to religious endowments. 

See Transfer of Property Act, 1882, s. 18, 


(а) Bhupati Nath v. Earn Lai (1910) 37 Cal. 128, 

3 I.C. 642 ; MoHar Singh v. Het Singh 
(1910) 32 All. 337, 5 I.C. 684 ; Chalarbhuj 
V. Chatarjxt (1911) 33 All. 253, 8 I.C. 832. 

(б) Bhupalhinath Chakrabarti v. Basanlkumari 

Debi (1936) 68 Cal. 1098, ('36) A.C. 556. 

(c) Fhundan Lai v. Arya Pnihi (1911) 33 All. 
793, 11 I.C. 260 ; Chandx Charan v. Hari’ 
bola (1919) 46 Cal. 961, 51 I.C, 275, (*19) 
A.C. 109. 


(d) Bijoychand v, Kalipada (1914) 41 Cal. 67, 20 

I.C. 78, (’14) A.C. 200. 

(e) Sarab Sukh v. Ram Prasad (1924) 46 All. 

130, 135, 78 I.C. 1018, (’24) A.A, 357. 
(/) Transfer of Property Act, 1882, 3. 18 ; 
Indian Succession Act, 1925, s. 118; 
BhuggobuiXy V. Qooroo (1898) 25 Cal. 112 ; 
PrafuUa v. Jogendra Nath (1905) 9 C.W. 
N. 528. 

ig) Anantha v. Nagoiniithu (1882) 4 Mad. 200. 



DEVASTHAIJAMS AND MATHS. 


497 


412. Estate in remainder. — An endowment is not invalid 
because it is to take effect after the determination of an estate 
for life {h). 


Ilbistration. 

A executes a deed by which he reserves to himself a life-estate in certain property 
and directs that after his death the income of the property shall be paid to his daughter 
for life and after her death it shall be devoted to a certain temple. The endowment 
is valid, though it is to take effect after the determination of th© life-estates in favour 
of the settlor and his daughter. 


413. Devasthanam, Math, Shebait, Mohunt, Debutter 
property. — Where property is devoted absolutely to religious pur- 
poses, in other words, where the dedication is absolute and 
complete, the possession and management of the property 
belongs, in the case of a devasthanam or temple, to the manager 
of the temple, called shebait ; and, m the case of a math, that 
is an abode for students of religion, to the head of the math, 
called mohunt ; and this carries with it the right to bring what- 
ever suits are necessary for the protection of the property. 
Every such right of suit is vested in the case of temple property 
in the shebait, and not in the idol, and in the case of math pro- 
perty in the mohunt (i). Property dedicated to religious 
uses is called debutter property. “ Debutter ” means literally 
‘ belonging to a deity.’ 

Succeeding shebaits of a temple and mohunts of a math 
form a continuous representation of the property of the idol 
or of the math {j). 

Distinction between temples and maths. — The religious foundations known as Devos* 
ihanams or temples are the most numerous in India, and have the largest endowments 
especially in the shape of lands, assignment of public revenue, and jewellery. These 
institutions have been established for th© spiritual benefit of the Hindu community in 
general, or for that of particular sects or sections thereof. Kext to the temples, the most 
important religious foundations in this country are the ancient maihs or monasteries 
presided over almost invariably by sanyasis or monks. The object of these maihs (or 
mutts) is generally the promotion of religious knowledge, and the imparting of spiritual 
instruction to the disciples and followers of th© math. In the case of maths though there 
are idols connected therewith, the worship of them is a secondary matter. The 
two classes of institutions, namely, temples and mathSf are thus supplementary to each 
other in the Hindu Ecclesiastical system, both conducive to spiritual welfare, the one 
by affording opportunities for prayer and worship, th© other by facilitating spiritual 
instruction and the acquisition of religious knowledge. In the case of temples, the ideal 
person is the idol itself : in the case of maths the ideal person is the office of the spiritual 


(A) Qobind v. Qomli (1908) 30 All. 288. 

(t) Jagadindra Nath v. Uemanla (1005) 32 Cal. 
129, 31 1.A. 203 ; Babajirao y. LaxmandaB 
(1904) 28 Bom. 215; Bidhu v. ExUada^ 
prasad (1910) 46 Cal. 877, 50 I.C. 525, 
(’19) A.C. 245 ; Jodhi Rai v. Basdeo Prasad 


(1911) 33 All. 735, 11 I. C. 47 (F.B.] ; 
Oobinda Ranianuj Daa Mohanta v. 
Mohanta Ramcharan Ramanuj Das (1936) 
63 Cal. 326. 

O') Qulabbhai v. Sohangdasji (1028) 52 Bom. 
431, 110 I.C. 263, (’28) A.B, 183. 


Ss. 

412, 413 



498 


HINBU LAW 


Ss. teacher, ^cAorya, which, as it were, is incanuiit in the person of each successive Swami 

413,414 or head of the math. This difierence in the character of the juridical person in the 

case of temples and in the case of maths leads to this result, that while the shehait of a 
temple forfeits his position as such by reason of his lunacy, the head of a math does 
not (k). A shehait need not be removed from the office on account of his subsequent 
lunacy. The guardian of the lunatic can discharge his duties on his behalf (f). 

Property held by an idol. — “ It is only in an ideal sense that property can be said to 
belong to an idol ; and the possession and management of it must in the nature of things 
be entrusted to some person as shehait, or manager ” (m). 

Property held by a math. — “ A math, like an idol, is in Hindu law a juridical person 
capable of acquiring, holding and vindicating legal rights, though of necessity it can 
only act in relation to those rights through the medium of some human agency. When 
the property is vested in the math, then litigation in respect of it has ordinarily to be 
conducted by, and in the name, of the manager [Mohnnt] ” (n). 

Idols and maths are both juridical persons. — The Hindu law, like the Roman law 
and those [systems of law] derived from it, recognizes not only corporate bodies with 
rights of property vested in the corporation, apart from its individual members, but also 
the juridical persons or subjects called foundations (o). Temples and maths are both 
religious foundations. 

Though there are some points of similarity between a minor and a Hindu idol still 
the idol IS not a perpetual minor (p). Any next friend may sue on behalf of an idol for a 
declaration that certain property is debutter property. It is not necessary to ask the 
shebait to institute the suit before the next friend files it (<)}. 

Suit in name of temple. — A temple is not a juridical person ; no suit, therefore, relating 
to the temple property, can be instituted in the name of the temple (r). 

Female manager. — There is nothing to prevent a female from being the manager 
of a religious endowment, but she cannot perform any spiritual functions (s). Accord- 
ing to the practice and precedents obtaining in the Madras Presidency a Hindu female 
is not incompetent by reason of her sex to succeed to the office of Acharya in a temple 
and to the emoluments attached thereto ((). 

Trustees. — Property belonging to a religious institution may by the usage and 
custom of the institution vest in trustees other than the spiritual head (m). 

414. Position of shebait and mohunt,— (i) Shebait. A shebait 
is, by virtue of his office, the administrator of the property 
attached to the temple of which he is the shebait. As regards 


(it) Vxdyapurna v. Vidyaindhi (1904) 27 Mad. 
435 ; Sammantha v. Selappa (2879) 2 Mad. 
175 179 ; Giyana v. Kandasami (1887) 10 
Mad. 375, 380. 

(Z) Nirmal Kumar Banerji v. Jyoii Prasad 
Baner^x (1941) 2 Cal. 128, 197 I.C. 763, 
('42) A.C. 99. 

(m) ProBunno Kumarx v. Golab Chand (1875) 14 

Beng. L.B. 450, 459, 2 I.A. 145, 152; 
Pramaiha Naib y. Pradyumna (1925) 
62 I. A. 245, 251-252, 52 Cal, 809, 816, 
87 I.C. 305, (*25) A.PC. 139. 

(n) Babajiraoy, iamandcs (1904) 28 Bom. 215, 

223. 

(o) Manohar v Lakhmiram (1888) Bom. 247, 

2fi3,alfd in Chotalaly. Manohar (1900) 24 
Bom. 50, 26 I. A. 199 ; Narasimka v, 
Venkaialingum (1927) 50 Mad. 687, 103 


I. C. 302, (’27) A. M. G3(S, In reSarjubai 
(1944) Nag. 81 IF-B.]. 

OO ^'arit Bhnsan Bay v. Sree Ishivar 
Sridhar Salgrameila Thakur Cal. 

477, 109 I C. 486, {'42) A.C. 99. 

(ff) Tkol'iir Sree Sree Annapurna Debi 
V, sSlnba Sundari Dasi (1944) 2 Cal. 144. 
(r) Thakardivara Phru Mai v. Ishar Das 
(1928) 9Lah. 588, 110 I.C. 384, (’28) 
A.L. 375. 

(«) See Janoki Devi v. Gopal (1882) 9 Cal. 766, 
10 I A. 32 ; Keshavbhat v. Bhagirathibai 
(I8(>i>) 3 Bom. H 0 A Ci 75. 

(t) Annaya v. Ammakka (1918) 41 Mad 886, 
47 I.C. 341, ('19) A.M. 598 IP.B.). 

(m) Arunachellani v. V enkalacholapathi (1919) 
46 I.A. 204, 43 Mad. 253, 53 I.C. 288, 
C’19) A.PC. 62. 



ALIENATION OF ENDOWED PROPERTY. 


499 


the 'property of the temple, he is in the position of a trustee. But 
as regards the service of the temple and the duties that appertain 
to it, he is rather in the position of the holder of an office or 
dignity {v). 

It lias been laid down by the Judicial Committee, that a shebait has not the legal 
ownership in, but only the title of manager of, a religious endowment {w). It follows 
from this that the rent of property dedicated to the services of an idol (x)y as well as 
offerings made to the idol [s. 422], belong to the idol, and not to the shebait. A shebait, 
being a manager only, ceases to be a shebait when he ceases to manage the property 
and carry on the worship of the idol {x). Where the founder has reserved to himself 
the puja of the idol he is the shebait, but if he chooses not to administer the endowed 
property and appoints another to perform the duty the former is competent to dismiss 
the latter (y). 

(2) Mohunt . — As to the property of a math^fhe title to 
it in an ordinary case is in the mohunt as spiritual head of the 
institution, but the property may by the usage and custom of the 
institution vest in trustees other than the spiritual head. In 
any case the property is held solely in trust for the purposes of 
the institution {z ) ; surplus income must be added to the 
endowment and not applied for the personal enjoyment of the 
head of the math (a). A mohunt is not a trustee in the English 
legal sense of the term (6). His functions and duties are 
regulated by custom. His wide discretion as to the appli- 
cation of the income is subject to the fiduciary obligation to 
manage the property so as to serve effectively the objects for 
which the Math exists (c). The de facto mohunt of a Math 
though not duly installed can maintain .a suit to recover the 
property for its benefit from trespassers {d). 

DharmaJcaria . — A dharmakarta is no more than a manager, and his rights, apart 
perhaps from the question of personal support, are never higher than those of a mere 
trustee; in this respect he differs from a shebait or the head of a math. Those fimction- 
aries have a much higher right with larger poAvers of disposal and administration («). 

Benatni purchase by shebait of debulter propetty . — As a shebait occupies a fiduciary 
position with respect to debutter property, a purchase of such property by him benaini 


(.y) Ramanatlian v. Murugappa (1900) 29 Mad. 1 
283, 33 I.A, 139. i 

(ly) Shibessotiree v, MotJicoranath (1809) 13 M.I. 

A. 270, 273. 

(x) Bhuban Mofmn v. Narendra yath (1931) 35 
C.W.N. 478, 135 I.C, 865, ('32) A C 27. 
iy) Ram Das v. Shri Ram Lawman Janki (1943) 
All. 845, 209 I.O. 463, ('43) A.A. 352. 

(z) Qobinda Ramanuj Das Mobanta v. Mohanla 
liamcharan Ramanuj Das (1936) 63 
Cal. 326. 

(a) Arunaciiellam v. Venkatachalapathi (1919) 
46 I.A. 204, 43 Mad. 253, 53 I.C. 288, (’19) 
A. PC. 62 ; Ram Parkash Das v. Anand 
Das (1916) 43 I.A. 73, 43 Cal. 707, 33 I.C. 
583, (’16) A.PC. 256; SelhurayTiaswamiar 
V. Aleruswamiar (IQIS) 45 I.A. 1, 41 Mad. 


296. 43 I.C. 806, (’17) A.PC. 1900; 

Balasivamy v V enkataswamy (1917) 4 
Mad. 745, 40 I.C. 531, (’18) AM. 984. 

(b) Anantakrishna Shastri v. Prayagdas (1937) 

1 Cal. 84. 

(c) Mahanl Kesho Das v. Amar Dasji (1935) 14 

Pat. 379, 156 I.C. 1099, (’35) A.P. 111. 

(d) Mahadeo Prasad Singh v. Earia BAarti (1935) 

57 All. 39, 62 I.A. 47, 153 I.C. 1100, (’35) 
A.PC. 44 ; Sr. Radhakrishna Asthapii 
Thakurdwara v. hist. Maharaj Kunwar 
(1937) 12 Luck. 331, 1G4 I.C. 919, (’37) 
A,0. 69. 

{e) Srvnivasa Chariaf v. Evalappa Mudalxar 
(1922) 49 I.A. 237, 46 Mad. 565, 6S I.C. 
1, (’22) A.PC. 325. 


S.414 



500 


HINDU LAW. 


Ss. 

414, 415 


and -without disclosing that he is the real purchaser is invalid, even if he buys at a sale 
execution proceedings and has paid the fidl market value (/). 


415. Alienation of debutter property. — (1) As a general rule 
of Hindu law, property given for the maintenance of religious 
worship, and of charities connected with it, is inalienable. It 
is competent, however, for the shebait or mohunt in charge 
of the property, in his capacity of shebait or mohunt and as 
manager of the property, to incur debts and borrow money on 
a mortgage of the property for the purpose of keeping up the 
religious worship, and for the benefit and preservation of the 
property. The power, however, incur debts must be mea- 
sured by an existing necessity for incurring them. 

(2) The power of a shebait or a mohunt to alienate debut- 
ter property is analogous to that of a manager for an infant heir 
as defined by the Judicial Committee in Hunooman Persaud v. 
Mussumat Bahooee (1856) 6 M.I.A. 393. As held in that case, 
he has no power to alienate debutter property except “ in a case 
of need or for the benefit of the estate.” He is not entitled 
to sell the property for the purpose of investing the price of 
it so as to bring in an income larger than that derived from the 
property itself. Nor can he, except for legal necessity, grant 
a permanent lease of debutter property, though he may create 
proper derivative tenures and estates conformable to usage {g). 
Where, however, a grant of a permanent lease has been 
affirmed by a judgment of the Court, the judgment will 
operate as res judicata, and the succeeding shebait or mohunt 
will be bound by it {h). 


Powers of shebait and mohunt . — “ It is only in an ideal sense that property can be 
said to belong to an idol ; and the possession and management of it must in the nature 
of things be entrusted to some person as shebait, or manager. It would seem to follow 
that the person so entrusted must of necessity be empowered to do whatever may be 
required for the service of the idol, and for the benefit and preservation of its property, at 
least to as great a degree as the manager of an infant heir. If this were not so, the 
estate of the idol might be destroyed or wasted, and its worship discontinued, for want 
of the necessary funds to preserve and maintain them ” [i). 


(/) Peary Mohan v, Monohar (1921) 48 I.A. i 
258. 48 Cal. 1019, 62 I.C. 76, ('22) 

A PC. 235. 

ig) Prosunno Sv-mari v. Qolah Chand (1875) 

2 I.A. 145, 14 Beog. Xj.U. 450 [Mortgage] , 
Abhiram v. Shyama Charan (1909) 36 Cal. 
1003, 36 I.A. 148, 4 I.C. 449 [lease] ; 
Palaniappa v. Deetasikamony (1917) 44 
I.A, 147, 40 Mad. 709, 39 I.C. 722, (’17) 
A.PC. 33 [lease] ; Vidya Varuthi v Bain- 
sami (1921) 48 I.A. 302, 44 Mad. 831, 65 
I.C. 161, ('22) A.PC. 123 [lease] ; Konwar 
Doorganath v. Ramchander (1876) 2 Cal. 
341. 351, 4 I.A. 52, 62 [lease] ; Shibes- 
aotiree v, Mothooranath (1869) 13 M.I.A. 


270 [lease] , Ramehandra v. Kashinath 
(1895) 19 Bora 271 ; Prosunno Kumar v. 
5arotict (1895) 22 Cal 989 ; Sheo Shankar 
V. Ram SheiPak (1897) 24 Cal. 77; 
Puraolarn Oir v. Dal Gir (1903) 25 All. 
296 ; Ram Cftondrc v. Ram Krishna (1906) 
33 Cal. 507 ; Muthusamier v. Sreemetha- 
nithi (1015) 38 Mad. 356, 19 I.C. 694, (*16) 
A.M. 332 ; Mahantha Jai Krishna v. 
Bhukhal (1021) 0 Pat. L.J. 638, 66 I.C. 
290, ('22) A.p. 165 [lease]. 

(A) (1809) 13 M.I.A. 270, supra. 

(i) (1875) 14 Beug. L.E. 450, 450, 2 I.A. 145, 
153, supra ; Pasupaihinath Seal v. Pra- 
dyumnakumar Millik (1936) 63 Cal. 464. 



ALIENATION OF ENDOWED PEOPEETY. 


501 


It was at one time held that the corpus of endowed property could not in any case S. 415 
be sold or permanently alienated, though the income might be mortgaged for necessary 
purposes ( j). But this view is no longer tenable. 

A shebait cannot delegate his duties though he may appoint a sub-agent for the 
purpose of carrying out his duties in the usual course of business. A lease granted by a 
sub-agent without the knowledge of the shebait is not binding on the temple (k). 

Permanent lease. — Except for unavoidable necessity, the head of a math cannot 
create any interest in the math property to enure beyond his life (1). A permanent lease of 
temple lands at a fixed rent, or rent-free for a premium, whether the lands are agricultural 
lands or a building site, is valid only if made for a necessity of the institution. It is not 
permissible by a local custom, or by a practice of the institution, to grant lands in that 
mann6r(m). In Abhiram v. Shyama Charan (n), where the question arose as to whether a 
permanent lease granted by a mohunt was valid ; it was held that it was not, as there was 
no legal necessity for it. In the course of the judgment their Lordships of the Privy Council 
said ; “ The second question is whether the . . . the mohunt had power to grant a 

mokarrari pottah of the mouzah. It is well settled law that the power of the mohunt to 
alienate debutter property is, like the power of the manager for an infant heir, limited to 
cases of unavoidable necessity ; Prasunno Kumari Debya v. Oolab Ghand (o). In the case 
of Konwur Doorganath Roy v. Ram Chunder Sen (p) a mokarrari pottah of debutter land, 
was supported on the ground that it was granted in consideration of money said to be 
required for the repair and completion of a temple, for which no other funds could be 
obtained. But the general rule is that laid down in the case of Shibessouree Pebia v. 
Mothooranath Acharjo (j), that apart from such necessity ‘ to create a new and fixed rent 
for all time, though adequate at the time, in lieu of giving the endowment the benefit 
of an augmentation of a variable rent from time to time, would be a breach ot duty 
in the mohunt. There is no allegation that there were any special circumstances of 
necessity in this case to justify the grant of the pottah of 1860, which on the most 
favourable construction enured only for the lifetime of the grantor.” 

Legal necessity. — In Prosunno Kumari v. Oolab Chand (r) their Lordships of the 
Privy Council said : “ The power, however [of a shebait], to incur debts must be measured 

by the existing necessity for incurring them.” In that case it was found that the shebait 
was a man of profligate habits, and that he, having spent the income of the debutter 
property on his own pleasures, borrowed Rs. 4,000 to defray the expenses of the worship 
of the idol, and mortgaged the property as security for the advance. In a suit to enforce 
the mortgage a decree was passed for the motgagee providing for the realisation of the 
loan out of the profits of the mortgaged property. In a suit by the successor to set aside 
the decree, it was held that the debts having been contracted for legal necessity, the decree 
was binding upon the successor in office, and that decision was confirmed by the Judicial 
Committee. The principle of that decision was applied by the Judicial Committee in the 
later case of Niladri Sahu v. Mahant Chaturbhuj Das (a). In that case the mahant of a 
math borrowed money at 2 per cent, per mensem mainly for the purpose of constructing 
pakka buildings for the accommodation of wealthy devotees visiting the math and in part 


{j) Narayan v, Chintaman (1831) 5 Boai. 393 ; 
Collector of I’hatia v. Han (1882) Q Bom. 
646 : Nallaijappa v. Ambalavana (1904) 
27 Mad. 465. 

(k) Shree Shree G’opal Shreedhar Mahadeh v, 

Shasheebhushan Sarkar (1933) 00 Cal. Ill, 
142 I.C. 40.5, (’33) A.C. 109 

(l) Vidya Varuthi v. Balusaini (1921) 48 I. A. 

302, 44 Mad. 831, 65 I.C. 161, (’22) A. 
PC. 123 ; Deosthan v. Ramdayal (1944) 
Na«. 51. 

(m) Palaniappa v. Deeiasikamony (1917) 44 I.A. 

147, 40 Mad. 709, 39 I.C. 722. ('17) A. 
PC. 33 ; Qobinda Ra7nnu} Das Vohanta v. 


(n) 


( 0 ) 

(/») 

(9) 

ir) 


(«) 


ilohanla Ramrharan Ramanuj Das (1930) 
63 Cal. 326 ; Srimath Dairasikamam v. 
Periyanan Chetli (1930) 63 I.A 261, 59 
Mad. 909, 38 Bom. L.R. 702, 162 I.C. 465, 
(’36) A.PC. 183. 

(1909) 36 Cal 1003, 36 I.A. 148, 165, 4 I.C. 
44. 

(1875) 2 I.A. 145, 14 Beng. L.R. 450. 

(1876) 2 Cal. 341, 4 I.A. 52. 

(1869) 13 M.I.A. 270. 

(1875) 2 I.A. 145, 151-152, 14 Beng. L.R. 
450 [mortgage]. 

(1926) 63 I.A. 253, 6 Pat. 139, 98 I.C. 
576, (’26) A.PC 112. 



502 


HINDU LAW. 


Ss. 

415,415A 


for the ordinary expenses of the worship. Afterwards he mortgaged certain of the math 
properties at one per cent, per mensem in order to discharge the loan at two per cent, per 
mensem which was an accumulating burden upon the endowment. In a suit to enforce 
the mortgage it was held that the mortgage was for legal necessity so as to bo within the 
power of the mahant, even if the original loans were incurred recklessly and not for the 
benefit of the math, which, however, was not shown to be tho case. In the course of the 
judgment theii Lordships said : “ The importance of this case in its application to the 

present consists in this, that it was tho immediate not the remote cause, the causa causana 
of the borrowing which has to be considered. The immediate cause of the borrowing was 
the math’s need of money to carry on and pay for its services. Tho remote cause of tho 
math’s need was due to the profligate expenditure of the shebait. It would have been no 
answer to the creditor’s suit to say ; Your money was only borrowed because tho income 
of the math was spent, by a profligate shebait, and there was no money available to carry 
on the services of tho math. So m the present case. Even if the building scheme of 
tho defendant had been reckless, inconsistent, unsound, and liable to fail, which has not 
been proved, what drove him to borrow this money Bs. 25,000 on mortgage, to pay old 
debts, and so be relieved of the oppressive burden which the exorbitant rate of interest at 
which the earlier loans were made imposed upon him ? It was the high rate of interest, 
which he was already bound to pay, that was the necessary and immediate cause of his 
giving this mortgage, though tho remote cause of it was the getting into debt by the 
building operation. In their Lordships’ view the principle of the case above mentioned 
applied to this case.” 


Though a mahant has agreed in a suit to the validity of an alienation made without 
legal necessity, his successor is not bound by such iigreemont and it cannot prevent an 
investigation into the original nature of the transaction (/). 

Constructing pakka buildings for the accommodation of visitors to a math is a legal 
necessity (a). So too is the rebuildings of a dining hall for feeding visitors (a). 

"For the benefit of the eslule ." — ^The phrase “benefit of tho estate,” as used 
in the decisions with regard to the circumstances justifying an alienation by tho manager 
for an infant heir or by the tru.stee of a religious endowment, camiot be precisely defined 
but includes tho preservation of the estate from extinction, its defence against hostile 
litigation, its protection from inundation, and similar circumstances {w). See s. 243A, 
where this subject is fully discussed. 


415 A. Burden of proof of necessity, — (1) Where an aliena- 
tion is made of debutter property, the burden lies on the 
alienee to prove either that there was a legal necessity in fact, 
or that he made proper and bona fide enquiries as to the ex- 
istence of such necessity and did all that was reasonable to satisfy 
himself as to the exi.stence of such necessity. An order of 
Court giving a trustee or shebait leave to mortgage the trust 
property on the ground of necessity may be relied on by the 
mortgagee as prima facie evidence of his having made due 
and proper enquiries as to the necessity. Such an order cannot 


(1) Mahanth Rarndhan Pun v, Mst. Parbatt 
Euer (1937) 16 Pat. 476, 171 I C 457 
('37)A.P.519, .V,. 

(u) Niladri Salm v. Mahant Chaturbhuj Das 
(1926) 63 I, A, 253, 267, 6 Pat 139 98 
I.C. 676,{’26) A.PC, 112. 


(V) Vibhudapnya v, Lakshmindra (1927) 64 
I. A. 228, 60 Mad. 407, 101 I.C. 646 
( 27) A.PC. 131. 

(w) Palamapya v. Deivasikamonu (1917) 44 I.A. 
147, 155, 40 Mad. 700, 718, 39 I.C. 722 
(’17) A.PC. 33. 



ALIENATION OF ENDOWED PROPERTY. 


503 


be questioned on the ground of defect of procedure or Ss. 
incorrect exercise of jurisdiction (a:). In fact, the rules 415A, 
as to burden of proof in the case of an alienee from a 
shebait or mohunt a, re the same as those which apply to the 
case of an alienee from the manager for an infant heir {y). 

Those rules are set forth in sections 182 and 244. The notes to 
section 243 may also be referred to as throwing further light 
on the subject. Where only a portion of the loan is proved to 
have been applied to purposes of necessity, the rule laid 
down in section 245 applies {z). 

(2) Where the validity of a permanent lease granted by a 
shebait comes in question a long time after the grant, so that 
it is not possible to ascertain what were the circumstances in 
which it was made, the Court should.assume that the grant was 
made for necessity so as to be valid beyond the life of the 
grantor (a). 

416. Creditor’s suit for money lent for legal necessity.— 

(i) Where a shebait or mohunt contracts a debt for legal 
necessity, the creditor is entitled to a decree against him 
providing for the payment of the decretal amomit out of the 
profits of the debutter property even if no charge was created 
on the property to secure the loan. After the death of the 
debtor, the creditor is entitled to a similar decree against 
his successor (6). 

(2) In a case where the loan was made for legal necessity, 
the proper decree to be passed in a creditor’s suit, whether 
the loan be secured or unsecured, and whether the suit is 
brought against the debtor or his successor, is one directing 
the defendant to pay the decretal amount within a fixed period, 
and directing further that if the amount is not paid within 
that period, a receiver shall be appointed to realise the rents 
and profits of the debutter property and the proceeds from 
offerings, etc., and after payment of all expenses connected with 
the institution and the performance of the ceremonies and 


(*) Pashupathinath Seal v. Pradyumnakumar 
Mallikil^SQ) 63 Cal. 454. 

(y) Konwar Doorganalh v. Ramchunder (1876) 

2 Cal. 341, 351-352, 4 I.A. 52, 62-64; 
Munigesam v. Manickavasaka 44 I. 

A. 98, 40 Mad. 402, 39 I.C. 659, (’17) A. 

po; 0 . 

(z) 2 Cal. 341, pp. 353-354, supra. 

(a) Baioa Magnirarn v. Kasturbhai (1922) 49 I.A. 
54, 46 Bom. 481, 66 I.C, 162, (’22) A.PC. 


631 [lease impeached after 100 years]. 
(f>) Shankar v. Venkappa (1885) 9 Bom. 422 , 
Srimath Daivasikamani v. Noor Mahorned 
(1908) 41 Mad. 47 ; Lakshmindralhirtha v, 
Ragkunendra (1920) 43 Mad. 795, 69 I.C. 
287, (’20) A.M. 078 ; Sunderesany. Viswa- 
nada (1922) 45 Mad. 703, 72 I.C. 103, (’22) 
A.M. 402 ; Vibhiidapriya v. Lakehmindra 
(1027) 54 I.A. 228, 280 (argument of 
counsel), 50 Mad. 497, 101 I.C. 645, 
(’27) A.PC. 131. 



504 


HINDU LAW. 


Ss. 

41&418 


festivals and a reasonable provision for the maintenance of 
the shebait or mohnnt, the balance shall be applied in 
discharge of the plaintiff’s debt until such debt has been paid 
off (c). 

417. Decree against shebait or mohunt, when binding on 
successor. — It being competent to a shebait or mohunt to 
borrow money for necessary purposes, it follows that judgments 
obtained against a shebait or mohunt in respect' of debts so 
incurred are binding upon his successors who form a conti- 
nuing representation of the debutter or endowed property. 
But before applying the principle of res judicata to such judg- 
ments, the Court should be satisfied that the judgments relied 
upon were not obtained by fraud or collusion, and that the 
necessary and proper issues were raised, tried, and decided in 
the suits which led to them {d). If the decree is based on a 
compromise, the Courts should be satisfied that the compromise 
was entered into bona fide in the interest of the temple or 
math (e). See the Code of Civil Procedure, 1908, sec. 11, 
Expln. VI. 

418. Devolution of office of mohunt. — (J) The succession 
to the office of mohunt depends on the usage of each par- 
ticular math. As observed by their Lordships of the Privy 
Council, “ the only law as to mohunts and their office, functions 
and duties, is to 'be foimd in custom and practice, which is to be 
proved by testimony.” The custom that prevails in the 
majority of cases is that the mohunt nominates his successor 
by appointment during his lifetime or by will. Where there is 
no such custom, or where no nomination has been made, the 
usage of some institutions is to have a successor appointed by a 
system of election by all the mohunts of the sect in the neigh- 
bourhood. In some cases, the succession depends upon election 
by the disciples and followers of the math (/) . "Where a mohunt 
has the power to appoint his own successor, he cannot delegate 


{c) V ibhudapriya v. Lakgfimindra (1027) 54 
I.A. 228, 60 Mad. 497, 101 1.C. 645, ('27) 
A. PC. 131 ; Niladri Sahu v, Mahanl 
Chaturbhuj Das (1926) 53 I.A. 253, 6 
Pal. 139, 98 I.C. 576, ('26) A.PC. 112. 

(d) Pro$unno Kumari v. Golab (1875) 14 Bcdk. 
L.R. 450, 2 I.A. 145. 

(«) Manikka v. Balagopala KrUkna (1906) 29 
Mad. 553. 

(/) ’ Geerdharee Doss v. Nundokwore Dq89 (1867) 
11 M.I.A. 405, 428 ; Qenda Puri v. Ckatar 
Pun (1887) 9 AU. 1, 13 I.A. 100; Rama- 


lingam v. Vj/lhiiingam (1803) 16 Mad. 490^ 
20 I.A. 150 ; Ram Parkash Das v. Anand 
Das (1010) 43 I.A. 73, 43 Cal. 707, S3 
I.C. 583, (’16) A.PC. 256 : Lahar Puri v. 
Pttrttniyfo(/*(1915)42lJ\.. 116, 37 All. 208, 
29 I.C. 724, (’15) A.PC. 4; Bhagaban v. 
Ram Prapama (1805) 22 Cal. 848 [P.C.J ; 
Madho Das v. San.ta Dai (1378) 1 All. 
530 ; Vidyapuma v, Vidyanidhi (1004) 
27 Mad. 435 ; TriTnbakpuri v, Oangabai 
(1887) 11 Bom. 514 ; Bisfiambar Das v. 
Mst. Phidgari (1030) 11 LaU. 673, 125 
I.C, 621, (’30) A.L. 715. 



DEVOLUTION OE OFFICE OF SHEBAIT. 


605 


or transfer that power to a mohunt of a neighbouring math 
or to any other person {g). 

(2) Partition . — The headship of a math is not a matter 
of partition {h) ; nor is the property of the math {i). 

In the case of a maurasi math, the senior chela succeeds ; a fortiori in the absence 
of a valid nomination by the reigning Mohunt (^). 

Where the appointment of a successor is not made bona fide in the interests of the 
math, but in furtherance of the interests of the appointor, the appointment is invalid (k). 
Similarly a collusive appointment is not valid (/). 

Where the head of a math designates his successor, but dies before the latter can be 
formally initiated, the appointment is nevertheless valid (m). 

When the usage in a math consisting of several asthals has been to have only on© 
mohunt, a separation of the office, it would seem, is improper, unless there are special 
circumstances justifying it (n). 


Sa. 

418, 419 


419. Devolution of office of shebait. — (1) The devolution 
of the office of shebait depends on the terms of the deed or will 
by which it is created. Where there is no provision in the 
deed or will as to the succession, the title to the property or to 
the management and control of the property as the case may be, 
follows the line of inheritance from the founder, in other words, 
it passes to his heirs (o), unless there has been some usage or 
course of dealing which points to a different mode of 
devolution (p), e.g., devolution on a single heir {q). This 
rule applies also where the right of nomination is given to a 
committee, but the committee has ceased to exist (r). But 
this rule caimot be applied so as to vest the shebaitship in 


(g) Mahanth lianiji v. Lachhu (190ij 7 C.W.H. 
145. 

(A) Sethuraimswajtiiar v. Mcni^tcamiar (1918) 
45 l.A. 1, 9, 41 Mad. 290, 305, 43 I.C. 
803, ('17) A.BC. 190. 

(») Gobinda v. Ham Cfiaran Das (1925) 52 Cal. 

748. 89 I.C. 804, (’25) A.C. 1107. 

(;•) (1925) 52 Cal. 748, 89 I.C. 804, (’25) A.C. 
1107, supra. ■ 

(fc) Ramalingam v. Vythilingain (1893) 20 l.A. 
150, 1(5 Mad. 400 ; Ntuaruja v. Kailasaini 
(1021) 48 l.A. 1, 44 Mad. 283. 57 I.C. 
564, (’21) A.PC. 84. 

(i) Ram Parkash Das v. Anaiid Das (1916) 43 
l.A. 73, 43 Cal. 707, 33 I.C. 583, (’16) A. 
PC. 250. 

(m) Krishnagiri v, Skridbar (1922) 46 Bom. 655, 

67 I.C. 129, (’22) A.B. 202. 

(n) Ram Charan v. Gcbindu (1929) 56 I A. 

104, 56 Cal. 804, 114 I.C. 571, (’20) A.PC. 
65. 

(o) Ganesh Cbunder Dhur v. Lai Bsharu Dhur 

(1930) 63 l.A. 448', 38 Ikuti. L.K. 1250, 
104 I.C. 347, (’30) A.PC. 318; Rbabba 
Ttirini Deri v. Asha Lata Deii (1943) 
2 Cal. 137, 207 I.C 377, (’43) A.PC 89; 
urendra Narayan Sarbhadhikari v. 


Bholanalh Ray Ghaudhari (1944) 1 Cal. 
130. 

(p) GosamiSriGirdharijiw Rorttanlalji {ISQO) 17 
Cal. 3, 16 T.A. 137 ; Jagadmdra Nath v. 
Jlemanta (1905) 32 Cal 129, 31 l.A. 203 ; 
Gnanasambanda v. Vclu (1900) 23 Itod. 
271. 27 l.A. 69 ; Janoki v. Oopal (1883) 
9 Ca!. 766, 10 l.A. 32 ; Rajah Vunnah v. 
Ravi Vurmah (1876) 1 Mad. 235, 4 l.A. 
70 ; Rajah Mnttu v. Perianayagum 
(1874) 1 l.A. 209; Mohan v. Madhsuddan 
(1010) 32 All. 491, 0 I.C. 77 ; Sheo Prasad 
V. Aya Ram (1907) 29 AU. 663; (1918) 
45 l.A. 1, 41 Mad. 200, 43 I.C. 806, 
(’17) A.PC. 190, supra ; Sheoratan v. iiam 
Pargash (1890) 18 All. 227 ; Chandrika 
Bakksh Singh v. Bkola Singh (1938) IS 
Luck. 344, 168 I.C. 593, (’37) A.O. 373 ; 
Gulab Dass v. Manohar Dass (1938) IS 
Luck, 677, 171 be. 81, (’37) A.O. 490; 
Mst. Anvragi Kuer v. Paramanand 
Pathak (1939) Pat. 171. 

(tf) Ayiswarvanandaji v. Sti'oii (1926) 49 Mad. 

lie, 92 I.C, 928, (’26) A.M. 84. 

(r) Dharam Narain v. Suruj Narain (1040) 
AIL 815, 103 I.C. 007. (*41) A.A.l. 



506 


HINDU LAW. 


S. 419 persons who, according to the usages of the worship, cannot 
perform the rites of the office (s). 


The principle that a female heir takes only as limited owner applies to shebait interest 
also (^), 


(2) When the office has become vested by descent in 
more than one person, it is lawdul for the parties interested 
to arrange among themselves for the due execution of the 
functions belonging to the office in turn or in some settled 
order and sequence {u). If the parties do not agree, then, if the 
right to worship carries with it the right to receive offerings, 
any one of them may sue for a division of the right just 
as he may sue for partition of the joint family property, and to 
have periods fixed during wliich he may exercise the right. 
Such a right is “ property ” liable to partition, and the joint 
owners are entitled to perform the worship in turn [v). But 
if the right to worship does irot carry with it the right to receive 
offerings, a suit for a division of the right does not lie. In 
such a case the parties are bare managers or trustees, and the 
debutter property must be managed by them jointly [iv). But 
a civil court is competent to entertain a suit the object of which 
is to have a scheme framed for the administration of a 
private Debutter. If the deity is interested in the result of 
the suit the deity will be made a party and, in cases in wffiich 
the interests of the Shebaits are adverse to those of the deity, 
it mil have to be represented by a dismterested person ; but if 
the only dispute relates to the right of management and the 
deity’s interests will not be affected by the adjustment of the 
individual rights of the shebaits the deity is not a necessary 
party (x). A worshipper has no unqualified right to sue for a 
declaration that certain property is debutter property of the 
idol ; if the shebait is negligent or alienates the property in 
breach of trust either a prospective shebait or a member of 
the family (in case of a family endowment) may maintain 
the suit (y). One of two shebaits cannot sue for his half 


Molian Lalji v, Oordhan Lalji (1913) 35 All. 
283, 40 I.A. 97. 10 I.C. 337. 

(l) Mst. Annragi Kuer v. Parrmnand Palhak 

(1930) Bat. 171. 

(m) Rarr^inathnn v. Murujuppa (1906) 29 Mad. 

283, 33 I.A. 120 : Meenakshi v, 6’oma- 
Bundararn (1921) 44 Mad. 205, 59 I.C. 464, 
('21) A.M. 388. 

(o) Milta V. Neerunjun (1874) 14 flen^r, L.U. 
ICO, approved in Framatha X^ath v. Prady- 
umna Kumar (1925) 52 I.A. 245, 52 Cal 
809, 87 I.C. 305, ('25) A.PC. 139; Mon- 


charam v. Pranshankar (1882) 6 Bom 298 ; 
Limba v. ifaww (1889) 13 Bom. 548; 
Trimbak v. Lakshman (1896) 20 Bom. 495 ; 
SethurotnflSH'amiar v. 3Ienisira»nmr (1911) 
34 Mad. 470, 4 I C. 76. 

(w) -Sri /fflr/wn V. 6’ri Gopai (1897) 10 All 428. 
{z) liimal Krishna Gosh v. Jnanendra Kruhna 
GoBh (1937) 2 Cal. 105, 172 I.C. IGl, (’37) 
A.C. 338. 

(y) Saski Kumari Deti v. Dhirendra Kishore 
Uoy (3941) 1 Cal. 309, 196 I.C. 241 
f‘41) A.C. 248. 



RIGHT OF MANAGEMENT. 


507 


share of the royalty due to the deity under a lease (z). If the 
parties are members of a joint family governed by the Mitak- 
shara law, the senior male member is entitled to manage the 
property ; the other members are not entitled to demand the 
exercise of the right by rotation (a). 

The founder himself may appoint joint ahebaits (6). In Pramatha Nath v. 
Pradyaumna (c), tho question arose whether one of three brothers, who was entitled 
under an arrangement between theraselv'es to his annual turn of worship, had the right 
to remove the idol to his own house during his turn of worship. The Judicial Committee 
held that the idol could not be regarded as a mere chattel, and that the will of the idol 
as to its location must be respected, and the suit was remanded in order that the idol 
might appear by a disinterested next friend to be appointed by the Court. 

(3) Nomination by will . — There is a conflict of decisions 
as to wlietber a skebait can nominate his successor by will. It 
has been held by the High Court of Calcutta that he cannot, 
unless there be a usage justifying a nomination by will (d). On 
the other hand it has been held by the High Court of Bombay, 
that a valid devise may be made of the office of shebait, provided 
the devisee is a person standing in the line of succession, and is 
not disqualified by personal unfitness (e). The High Court of 
Allahabad has taken much the same view as the Calcutta 
High Court (/). However that may be, it is clear that where 
a person is appointed shebait with a power of appointing his 
successor, he may nominate his successor by an act mter vivos 
or by will. If he dies without exercising the power, the office 
reverts to the founder or his heirs (g). It is not competent 
for a shebait by his own act to alter the line of succession to 
the office of the Shebait. But if he makes a fresh grant to the 
existing endowment making a new line of shebaits an essential 
condition to the grant, the grant may be rejected on behalf 
of the deity but if it is accepted it must be accepted subject 
to the condition {h). 

420. Transfer of right of management. — (i) Sale . — A sale 
by a shebait or mohuiit of his right to manage debutter 
property is void, even though the transfer may be coupled 


{z) Barabani Coal Co?ict’?n LUl. v, Golulananda 
i^tohan ThaKur (1934) Cl I A. 35, Cl Cnl. 
313. 147 I G. 881, ('34) A. PC. 77 

(a) Thandaniroya v Shuninugum (1900) 32 Mud. 

1C7, 2 I.C. 341. 

(b) AsUa Mohan v. Niiode Muha}i (1920) 47 I.A. 

140, 24 O.W.N. 794. (’20) A. PC 120. 

(c) (1025) 52 I.A. 245, 52 Cul. 809, 87 I.C. 305, 

(’25) A. PC. 139. 

(d) Jtajeshwar v. Gopeahivar (1008) 35 Cal, 22fi. 
(fl) iVartcAfiram v Pranshankar (1882) C Boiu. 

208. 


(/) Chandranath v. Jadabendra (1000) 28 All. 
680 ; Cosit’ami Lalgx v. Ras Bihan 

Lai (1922) 44 All. 590, 67 I. C. 328, (’22) 
A.A.285. 

(j^) Jnnasami v. Rathukrishna (1901) 24 ilad. 
219; Ranjit Sitnjk v. Jaijan?iatk (1886) 
12 Cal. 375; Jatjaiinulh v. Ranjit Singh 
(1898) 25 Cul. 3.-)4 ; Radha Nath Mvkerji 
V. Shaktipada Mukerji (1906) 58 All. 1053, 
164 I.C. 595, (’30) A.A. 624. 

(A) iV irnuil Numar Btmerji v. Jpoti Prasad 
B««erji(1941) 2 Val. 128, 107 I C. 763, 
(•42)A.C. 99. 


Ss. 

419,420 



508 


HESDU I.AW. 


S. 4218 wtli an obligation to manage the property in conformity with 
the trast attached thereto (i). i^or can the right be sold in 
execution of a decree against him {j). Even if a custom be 
proved which sanctions the sale of such a right, the Courts 
should refuse to recognize it, as being against public policy, 
especially where the sale is made to a stranger for the pecuniary 
benefit of the vendor. In Rajah Vurmah v. Ravi Vunmh [k), 
which was a case of a sale by the Urallers (managers) of a certain 
pagoda of their right to manage the pagoda, the Judicial Com- 
mittee said ; “ Their Lordships are of opinion that no custom 

which can qualify the general principle of law has been 
established in this case ; and they desire to add that if the custom 
set up was one to sanction not merely the transfer of a trustee- 
ship, but as in fcliis case the sale of a trusteeship for the 
pecuniary advantage of the trustee, they would be disposed 
to hold that that circumstance alone would justify a decision 
that the custom was bad in law.” 


{2) Gift . — It was held in Bombay that it is competent to 
the shebait to renounce his right of management and transfer 
it to a person standing in the line of succession, prorided the 
transferee is not disqualified by personal unfitness (Z). The 
correctness of this decision has been very much doubted. 
Where there are several joint shebaits, they may renounce 
their right in favour of any one of them, provided the arrange- 
ment is for the benefit of the endowment (m). The transfer 
of a shebait right or of the idol with the endowed property is 
invalid in law {n). A gift of the right of management made 
to a stranger is not valid, unless it is sanctioned by custom (o). 
A hona fide compromise by the plaintiff in a suit for the office 
of shebait relinquishing the claim in favour of the person in 
possession of the office who would be entitled to it after the 
plaintiff, is valid (p). 


As to transfer of right to receive offerings, see note to s. 422. 

Removal of image from one temple to another , — The manager of a public temple has 
no right to remove the image from the temple, in which it is installed and instal it in 


(0 Baja Vurmah v. liavi Vurmah (1876) 1 Mad. 
235, 4 I. A. 76 ; GnanoJiambanda v. Velu 
(1900) 23 Mad. 271, 27 I. A. 69 ; Kuppa 
Doraeami (1882) 6 Mad. 76 ; OoHnda 
Ramanuj Mohanta v. Mohanta Ram- 
eharan Ramanuj Das (1936) 63 Cal. 326. 
(j) Durga v. Chanehal (1882) 4 All. 81 : Qanesh 
V. Shankar (1883) 10 Bom. 395. 

(i;) (1876) 1 Mad. 235, 4 1.A. 76, S4'65, 

(I) Manefuzram v. Pranshankar (1882) 6 Bom. 


298, 300. 

(m) Kirad V. Shibdas (1909) 36 Cal. 975, 3 I. C. 

76 v.iJan^a{1892) 15 Mad. 183. 

(n) Surendra A'araj/an Sarbadhikari v. Rhola 
ffatk Ray Chaudhuri (1944) 1 Cal. 139. 

( 0 ) Rajaram v. Qanesh (1899) 23 Bom. 131 ; 

Ukoor Doss V. CAund^r ( 1865) 3 R. 162. 
(p) Srimathi SabUri Tkakurain v. Mrs, Sari 
(1933) 12 Pat. 359, 146 I.C. 1, (*33) A.P. 
306. 



RIGHT OF FOUNDER. 


509 


H new building especially when the removal is objected to by a majority of the 
worshippers (9). 

421. Rights of Founder. — (1) According to the Hindu 
law, when the worship of an idol has been founded, the shebait- 
ship is held to be vested in the founder and his heirs, unless — 


(a) he has disposed of it otherwise ; or 

(b) there has been some usage or course of dealing which 
points to a different mode of devolution (r) [s. 419]. 

This principle applies to private as well as public trusts (s). 
The founder may appoint another person to manage 
the trust on his behalf and when he does so he can supervise 
his actions and remove him if he misbehaves. But where 
the founder hands over all his rights to another and divests 
himself of every vestige of interest in the matter , he cannot sub- 
sequently sue for being restored to the right of management {t). 


(2) The ruling in Tagore v. Tagore (u), that all estates 
of inheritance created by gift or wiU, so far as they are 
inconsistent with the general law of inheritance, are void as 
such, and that by Hindu law no person can succeed thereunder 
as heir to estates described in terms which English law would 
designate estates tail, is applicable to an hereditary office and 
endowment as well as to other immoveable property. A 
Hindu, therefore, cannot by gift or will direct that the office 
of shebait shall be held by his sons, grandsons and their male 
descendants in perpetuity (n). The right to the office of shebait 
is subject to the rules in ss. 372, 382 and 392 (w) above. These 
rules do not apply to the Dharmakarthaship of a temple which is 
not a species of property and unlike shebait-ship and therefore, 
where the founder provided that the office of trusteeship should 
be held by his descendants both in the male and the female 
line, it was held that the provision is valid (x). 


(g) Ban v. Antaji (1920) 44 Bora, 400, 50 I.C. t 
459, {'20) A. B. 87. i 

(r) Qosami Sri Girdhariji v. (1890) 17 ! 

Cal. 3, 16 I.A. 137 ; Jagadindra yath v. 
Remanta (1905) 32 Cal. 120, 31 I. A 203 ; 
Mohan Lalgi v. (1010) 32 AIL 

401, 6 I.C. 77 ; Kalikriskna v. Makfian Lai 
(1923) 50 Cal. 233. 72 I.C. 63(1, ('23) A.C. 
100 . Sbeo Prasad v. Aya ifaw (1907) 20 
AIL 603 ; AfsL Anuragi Ktter v. Parma- i 
TKi7id Patfeii (1030) Pat. 171. 

<s) Prakkaeh Chandra Naq, v. .SuhodA Chandra 
Nan (1937) 1 Cal. 575, 170 I.C. 200, ('37) 
A.C. 67. 1 

(0 Oangaram v. Dooboo (1936) Nag. 111. {'36) i 
A.N.223. ! 


(m) (1672) I. a. Supp. 47, 9 Beng. L. R. 377. 

(t?) Cnatmsambanda v. Feiu (1899) 27 I.A. 69. 
23 Mad. 271 ; Copal Chundvr v. Kariick 
CAMnd<'r(1902) 29 Cal. 716 [P.C.) ; Chandra 
Chur Dev v. Vibhuti Bhushan Leva (1944) 
23 Pat. 763. 

(to) Manohar ilukherji v. Bhupendranath Mak- 
herii (1033) 60 Cal. 452, 141 I.C. 644, 
(*32) A.C, 791 ; Kandarpa Mohan Goswami 
V. Akshayacharidra Basu (1934) 01 Cal. 
106, 150 I.C. 179, ('34) A.C- 379 ; Ganesh 
Chimder Dhur v. Lai Bekari Dkur 63 
I.A. 448, 38 Bom. L.R. 1250, 163 I.C. 
347, ('30) A.PC. 318. 

(x) Manathunainath Desikar v. Oopala Chetttyar 
ii- Ors. (1943) Mad. 868, ('44) A.M. 1. 


S&. 

420, 421 



510 


HINDU LAW. 


Ss. 

421»422 


As to the appointment as shebait of a person born after the death of the founder, 
see notes to s. .372, “ Exceptions to the rule. ’ 

(5) Where the founder has prescribed a line of succession 
of the office of shebait, but the succession to the office has 
entirely failed, the right of management reverts to the founder 
and his heirs («/). But the founder is not entitled to alter the 
line of succession or to interfere in the management, unless he 
has, by the deed of endowment, reserved the right to do so (z). 

{4) Once a grant is made for rebgious purposes, it 
becomes irrevocable (a). The beneficial ownership cannot imder 
any circumstances revert to the founder or his heirs. If the 
objects of the endowment are not carried out, the founder or his 
heirs may bring a suit to have the funds applied to their lawful 
purposes, but they cannot resume the grant (b). If the trust 
fails for want of objects, they may move the Court to apply the 
funds cy-pres, that is to say, to other objects as nearly as may 
be of a similar character (c). 

Whei© there has been no permanent endowment but only a temporary arrangement 
isnot irrevocable (d). 

The person providing the original endowment is the founder. But persons who 
subsequent to the foundation, furnish additional contributions, do not thereby become 
founders; their benefaction is regarded as merely an accretion to an existing founda- 
tion (e). 

See the Code of Civil Procedure, 1008, ss. 92 and 93. 

422. Offerings. — Offerings made to an idol belong to 
the idol as much as land dedicated to an idol, and not to the 
officiating priest, unless there be a custom or an express 
declaration by the founder to the contrary. Such offerings 
are intended to contribute to the maintenance of the shrine 
with all its rites, ceremonies and charities, and not to become 
the personal property of the priest (f). But there may be 

Jugff7UMofiiniy. Sokheetnonej/ (1871) 14 M.I. 
A. 289. 302. 

liatn Narayan v. /fomoon (1874) 23 'W.Jl 76 \ 
Mohesh Chunderv Koylaah C?i«nd^(1809) 
11 W.B. 443. 

Mayor Lyons v. Adv.-Qen. of Bmgal (1876) 
26 W K. 1. 

(1932) 11 Pn(,. 701, 141 T C. 157, ('33> 
A.B. 0, sapra. 

Appasaml v. Nagappa (1884) 7 Mad. 499 
Annasami v. Ranuiknshna (1901) 24 Makd. 
210 ; Gosami Sri Girdhariji v. Itomanlalji 
(1889) 16 I. A. 137, 147, 17 Cal. 3, 23 
Ananda Chandra v. Braja Lai (1923) B(> 
Cal. 292, 301-302, 74 I. C. 703, ('23) A.O. 
142, 

Manohar'^'. LaJcshmiram (1888) 12 Bora. 247, 
265, affd. in Chotalaly. Manohar (1900) 24- 
Bom. 50, 26 I. A. 199 ; Oirijatiund v. Sai- 
lajanund (1890) 23 Cal. 645 ; Shibesaoureff 
V. Mothooranath (1869) 13 M.I.A. 270 , 
273 [as to rents]. 


(y) Jai Bansi v, Chattar (1870) 5 Beng. h. R. 

181 ; Hori Dasi v. Secretary of Stole (1880) 
5 Cal. 228 ; Sheoratan v. Ram Pargash 
(1896) 18 All. 227 ; Jagannath v. Bunjit 
Singh (1898) 25 Cal. 354 ; Oopal Chundcr 
V. Kartrick Chunder (1902) 29 Cal. 716 ; 
Shea Prasad v, Aya Ram (1907) 29 All. 
663 ; ChatUTbh7ij Singh v. Sarada Charan 
Guho (1932) 11 Pat. 701, 141 I C. 157, 
(’33) A.P. 6 ; Radhanaih Mukerji v, 
Shakthipatha Mukerji (1936) 58 All. 1053, 
164 I.O. 595, (’36) A.A. 624 ; Chandrika 
Baksh Singh v. Bhola Singh (1038) 13 
Lnck. 344, 168 I.C. 593, ('37) A.O. 373; 
Oulabdoss V, Manohar Vass (1938) 13 
Luck. 577, 171 I.C. 81, ('37) A.O. 490; 
Chandra Choor Dev v. Vibhuli Bhushan 
Deva (1944) 23 Pat. 763. 

(z) Gaurifrumari v, Ramanimoyi (1923) 50 Cal. 

197, 70 I.C. 176,('23) A.C. 30 ; Teertaruppa 
y. Soonderarajien (1861) Mad. S.D.A. 
p. 57 ; Brindaban v. Sri Godamji (1937) 
All. 555, 165 I.O. 217, (’87) A.A. 304. 


(«) 

(ft) 

(c) 

(d) 
(«) 


(/) 



REMOVAL OF SHEBAITS AND MOHUNTS. 


511 


cases in winch the offerings, though made to the idols 
are received by certain persons and when they are so received 
independently of any obligation to render services they are 
alienable and attachable {g). 

The right to receiye oSerings from pilgrims resorting to a temple or shrines 
inalienable (h), 

423. Removal of shebaits and mohunts— Scheme for 
management. — The Courts have jurisdiction to deal with 
the managers of public Hindu temples, and, if necessary 
for the good of the religious endowment, to remove them 
from their position as managers {i). The Court may also 
remove a shebait of a private endowment for misconduct and 
direct him to render accounts for a certain period in its discre- 
tion. Though ordinarily all the shebaits must join in a suit on 
behalf of the idol when the suit is for the removal of a shebait 
for misconduct, this rule need not be followed. Such a suit 
by one of the shebaits is maintainable (j). It is sufficient ground 
for removing a shebait from his office that in the exercise of 
his duties he has placed himself in a position, in which the 
Court thinks that he can no longer faithfully discharge the 
obligations of the office (k). A member of the interested 
community may sue in a representative capacity for rendition 
of accounts of the profits collected by the shebait but is not 
entitled to call upon the defendant to hand over the funds of 
the temple except on proof of gross mismanagement or mis- 
applications of the funds (?). But a mere mistake on the part 
of the manager as to his true legal position or a mere laxity of 
management on his part not accompanied by any fraud or 
dishonest misappropriation, does not of necessity afford a 
ground for removing him from his post of manager, and entrust- 
ing it to new hands. In such a case, the Court may appoint 
a committee to supervise and control him, and, if necessary, 
frame a scheme for the management of the temple. It does 
not make any difference that the office is a hereditary office (m)! 


(<?) Nand Kumar Datt Qaneah Das (1936) 
58 All. 457, 169 I.C. 812, ('36) A.A, 131. 
{h) Puncha v. Bmdeswari (1916) 43 Cal, 28, 28 
I.C. 675, ('16) A.C. 260. 

(i) Chintaman v. DJioiido (1891) 16 Bom. 612; 

Ram Parkash Das v. Anaiid Das (1916) 
43 I.A. 73, 43 Cal, 707, 33 I.C. 583, 
('16) A. PC. 256 ; Srinivasa v. Eialappa 
(1922) 49 I.A. 237, 253-254, 45 Mad. 
505, 583-585, 08 I.C. 1, (’22) A. PC. 325 
[concocting of accounts]. 

(j) Nirmal Kumar Banerji v. Jyoli Prasad 

Banerji (1941) 2 Cal. 128, 197 I.C. 763, 
('42) A.C. 99. 

(k) Peary Mohan v. Monohar (1921) 48 I.A, 

258, 48 Cal. 1019, 62 I.C. 76, (’22) A.PC, 


2.35. 

(/) Phuttibai V, Shri Deo Mandir (1942) Nag. 
655, 202 I.C. 185, (*42) A.N. 105. 

(w) Annaji v, Narayan (1897) 21 Bom. 556 ; 
Damodar v. Bhogilal (1898) 22 Bom, 493 ; 
Tiraiengadath v. Srinivasa (1899) 22 
Mad. 361 ; Manokar v. Lakhmiram (1888) 
12 Bom. 247, affd. in Choialal v. Manohar 
(1900) 24 Bom. 50, 26 I.A. 199, Prayag 
Dass V, Tirumala (1907) 30 Mad 138, 34 
I.A, 78, in app. from 28 Mad. 319 ; Thac- 
kersey v. Hurbhum (1884) 8 Bom. 432; 
<Sit;a«Aan^ara 7. Vadagiri (1890) 13 Mad. 
6 ; NeUiappa v. Punnaivanam (1927) 50 
Mad. 667, 101 I.C. 420, (’27) A.M. 614. 


Ss. 

422,423 



Olli 


HINDU LAW. 


s*. Aa to the framing of a scheme, see the Code of Civil Procedure, es. 92 and 93. No 

423,424 geheme can be framed under those sections in the case of a private endowment (n). 

Where a person claiming aa his own what is really a public charity appoints a 
trustee to manage the property, the appointment is invalid (o). 

424. Distinction between public and private endowments.— 
{1) Religious endowments are either public or private. In a 
public endowment the dedication is for the use or benefit of the 
pubhc. When property is set apart for the worship of b, family 
god in which the public are not interested, the endowment is 
a private one (p). Where the main purpose of the endo’wment 
was the pnja of a deity established by the settlor in a house, and 
the surplus income was directed to be utilised for feeding the 
poor and helping the students, it was held the trust was a private 
trust and that all the trustees must join in its execution {q). 
The distinction between pubhc and private endowments is 
important, for it has been held by the Judicial Committee that, 
where a temple is a public temple, the dedication may be such 
that the family itself could not put an end to it, but in the case 
of property dedicated to a family idol, the consensus of the 
whole family might give the property another direction (r). 
This is regarded as one test to determine whether the endow- 
ment is private or pubhc (s). It has accordingly been held 
that where the heirs of the founder are unable to carry on the 
worship of the family idol out of the income of the endow- 
ment, they may transfer the idol and its property to another 
family for the purpose of carrying on the worship. Such a 
transfer, if made wdthout consideration and for the benefit of 
the idol, is valid and binding on the heirs of the transferors {t). 
In other respects, however, there is no distinction between 
the two kinds of endowments. Thus property dedicated 
to the services of a family idol cannot be aUenated except 
for unavoidable necessity, nor can it be taken in execution 
of a personal decree against the shebait (u) [s. 415]. 

(2) In Konivar Doorganath v. Ram Chunder (v), their 
Lordships of the Privy Council observed : “ Where the temple 

is a public temple, the dedication may be such that the family 
itself could not put an end to it but in the case of a family 

(n) Gopal Lai Sett V. Puma Chandra Basak (1^22) i 60 Cal. 538, 144 I.C. 894, (’33) A.C. 519. 

49 I.A. 100, 49 Cal. 459, 67 I.C. 561, (’22) i (r) Konwar Doorganath v. Ram Chunder (1876) 

A.PC. 253. , 2 Cal. 341, 347, 4 I.A. 52, 68. 

(o) Vaidyanatha v. Swaminatha (1924) 51 I A, (s) Ram Prasad v. Ram Krishna Prasad (1932) 

282, 47 Mad. 884, 82 I C. 804, (’24) A.PC, 11 Pat. 594, 138 I.C. 331, (’32) A.P. 177. 

221. (i) Khetter Chunder v. Bari Das (1890) 17 CaJ, 

ip) Jugalkishore Lakshmandas {i899)23Bom. ' 567. 

659. I (tt) V. irwAnaji (1885) 9 Bom, 169. 

(g) P asad Das Pal Jagannath Pal (1933) [ (•) (1877) 2 Cal. 341, 4 I.A. 62, 58. 



LIMITATION. 


513 


idol, the consensus of the whole family might give the estate 
another direction.” This dictum was followed in a Calcutta 
case {w) where it was held that properties dedicated to a family 
idol may be converted into secular property by the consensus of 
the family and that in that particular case the properties had 
been so converted with common consent. The correctness of 
this decision has been doubted in subsequent cases, and it 
has been said that even if the consent oi the family could 
effect such a diversion, it must be the consent of all members 
of the family, both males and females, as they are all interested 
in the worship of the idol (x). 

The Iteligious Endowments Act, 1863.— Tho Religious Endowments Act, 1863, does 
not apply to private endowments (y). As to the history of the Act and the cases to 
which it applies, see MuUa’s Code of Civil Procedure, notes to b. 92. See also Prannath 
Sarasvati’a Tagore Lectures on the Hindu Law of Endowments. 

As to the tests for determining whether a temple is a public or a private charity, see 
the cases in foot-note ( 2 ). Where there was a complete dedication, the temple being 
built in a place removed from the residential house of the testator and the public having 
free access, it was held that the temple was a public temple and the existence of a samadhi 
in memoty of religious persons is not inconsistent with this conclusion ( 0 ). In a case 
where the members of the family treated the temples as a family property, dividing 
profits (offerings or rents), excluding the public from worship at the time of marriages 
and other ceremonies in their home erecting samadhis in honour of the dead, it was held 
that the mere fact the public are not turned away ordinarily from the temple worship 
in the temple does not show that it was a public temple (6). 

Though maths as a rule are public endowments, a math may be a private 
institution (c). 

425, Right of worship. — Where a temple is established 
for the worship of members of a particular sect, persons 
belonging to other sects are not entitled to worship in the 
temple {d). 


Fees for admission to the sanctuary of a temple , — ^Rules prohibiting, except upon 
payment of fixed fees, entry into the inner sanctuary of a temple, are illegal (e). 


426, Limitation. — (1) Unauthorized alienation hy shebait 
and mohunt . — Where the head of a math grants a permanent 
lease of math property or sells it without legal necessity, or 


(t4>) Qobinda Kumar v. Debendra Kumar (1907) 
12 C.W.N. 08. 

(i) Gopal V. Radha (1925) 41 Cal. L.J. 390, 420, 
88 I.C. 610, (-25) A.O. 996 ; Chandi Charan 
V. Dulal Chandra (1027) 64 Cal. 30. 98 
I.C. 684, ('26)A.C. 1083. 

iy) Protap Chandra v. Brojonath (1892) 19 Cal. 
275. 

(r) PuraHya v. Poonachi (1921) 40 Mad. L.J. 
280, 02 I.O. 655 ; Partnanand v. ^ihal 
Chand (1988) 65 I.A. 252, 1938 Lah. 453, 
40 Bom. L.R. 907, 176 I.C. 459. ('38) 
A.PC. 195.“ 


(o) Premo v. Sheo Nath Pande (1933) 8 Luck. 

266, 140 I.C. 896, (’33) A.O. 22. 

(5) Babu Bhagican Din v. Qir Bar Sarup (1940) 
15 Luck. 1, 183 I.C. 305, 87 I.C. 1, ('40) 
A.PC. 7. 

(c) Salhappayyar v. Periasami (1891) 14 Mad. 1. 

(d) Sankaralinga v. Hajesioara (1908) 31 Mad. 

230. 35 I.A. 176. 

(e) Asharam v. Manager of Dakore 2'emple Com- 

miUee (1920) 44 Bom. 150, 55 I.C. 956, 
(•2Q) A.B. 153. 


Ss. 

4244 % 


17 



514 


HINDU LAW. 


S.426 


where the math property is sold in execution of a decree passed 
against him for a debt not contracted for a legal necessity, 
the question arises as to the period of limitation for a suit 
by his successor for possession of the property. Difficulties 
frequently arose as regards this question, and the Indian 
limitation Act, 1908, was amended by Act 1 of 1928 to meet 
those difficulties. This was done by inserting a new paragraph 
in sec. 10 of the Act of 1908, and four new articles in Schedule 
I to the Act. namely, 184A, 48B, 134B and 134C. The Act of 
1928 came into force on the Ist Januar}', 1929. As this Act 
can apply only to transfers made on or after the 1st January, 1929, 
it will be convenient first to state the law applicable to transfers 
made before that date, and then to set out the amendments 
made by that Act. 


As regards transfers made before the 1 st J anuary , 1 928, the 
law as gathered from the cases appears to be as follows : — 

(a) Law before Amendment . — Where the head of a math 
grants a permanent lease of math lands without legal 
necessity, the period of limitation for a suit by his 
successor for possession of the land is 12 years as 
provided by art. 144 of Schedule I to the Indian 
Limitation Act, 1908, the starting point of limitation 
being the date of the death of the grantor. The reason 
is that the head of a math is entitled to grant a 
lease during the period of his life, and there can 
therefore be no adverse possession until his death (/). 
If the lessee’s possession is consented to by his 
successor, the consent is referable to a new 
tenancy created by him, and the starting point 
of limitation for a suit for possession by his 
successor is again the date of his death {g). But a 
gumastha who was not .specially authorised to do so 
by the proprietor has no right to start a new tenancy 
by recognition of the lessee or by acceptance of rent. 
His conduct cannot estop the proprietor from challeng- 
ing the tenancy [h). 


{/) SfiiTUXth Vahasifiamani v. Penyanan Chelti \ 
(1936) 63 I. A. 261. 09 Mad. 809, 38 Boro. 
L.R. 702, 162 I C. 465, (’36) A. PC. 183. 

(ff) Vidr^a Vamihis. Balv^ami (1921) 48 I. A. 
302, 44 Mad. 831, 65 I.C. 161, ('22) A. 
PC. 123, reversing Balagwami y. Venkata' 
svaamy (1917) 40 Mad. 745, 40 I. C. 531, 
(’18) A.M, 984 ; Abdur Eahim v. Narayan 


Das (1923) 50 I.A. 84, 50 Cal. 329, 71 
I.O. 640, (’23) A. PC. 44 (last inutawali 
In possession within 12 years of suit — 
held suit by successor not barred]: 
Deosthany. Ba7n<toyol(i944) Naa. 51. 

(/i) Mahanth Biteshxcar Dass v. Sashinatk Jka 
(1943) 22 Pat. 133, 208 I.O. 129, ('43) 
A.P. 289, 



LIMITATION. 


515 


(6) Where debutter lands have been sold in eocecution of a 
decree against a shebait or a mohunt for a debt not 
contract^ for a legal necessity, the period of limita- 
tion for a suit for possession by his successor is 12 
years from the date of the sale under art. 144 {i). 

(c) Where there has been a private sale by a shebait or a 
mohunt of debutter lands without legal necessity the 
balance of opinion is in favour of the view that the 
period of limitation is 12 years from the date of the sale 
under art. 144, and not the date of the vendor’s death 
as in the case of a lease {j). Where lands belonging 
to a math have passed under an assignment. of the 
math and all its properties, the transaction is void 
and the cause of action to recover the property 
arises from the date of the transaction (k). But 
where the mohunt sells an item of property belonging 
to the math, the cause of action accrues to the 
successor only at his death as the transaction is 
only a voidable transaction (1). 

The endowments of a Hindu math are not “conveyed in trust," nor is the head 
of the math a “ trustee ” with regard to them, save as to specific property proved to have 
been vested in him for a specific object. Consequently art. 134 of Soh. I of the Indian 
Limitation Act, 1908, which contains the expressions above quoted, does not apply 
where the head of a math has granted a permanent lease of part of its property not 
proved to be vested in him subject to a specific trust («i). 

(2) Amendments. — Before the Indian Limitation (Amend- 
ment) Act 1 of 1929 neither a shebait nor a mohunt was 
regarded as a trustee of the debutter property. By that Act, 
sec. 10 of the Indian Limitation Act, 1908, was amended, and 
the following paragraph was inserted in it : — 

“Bor the purposes of this section any property comprised 
in a Hindu, Muhammadan or Buddhist religious or charitable 


(t) 5u6&aiyo V. (1923) 50 LA. 295, 

46 Mad. 751, 74 I.C. 492, (’23) A.PC. 
175 [sale ia execution of decree against 
manager of a chattram — suit brought more 
than 12 years after date of saU — held suit 
by successor barred]. 

(i) Qnanasambanda v. Velu (1900) 23 Mad. 271, 
27 l.A. 69 (sale by shebait — -purchaser in 
possession for upwards of 12 years from 
date of sale—held suit barred] ; Damodar 
Das V. Adhikari Lakhan Das (1910) 
37 I.C. 147, 37 Cal. 885, 7 I.C. 240, and 
Ishwar Shyam v. Ram Kanai (1911) 38 l.A. 
76, 38 Cal. 526, 10 I.C. 683 [transfer by 
senior chela to junior chela by way of 
compromise — suit by successor of senior 
chela more than 12 years after date of 
transfer — ^held suit barred] ; Chitar Mai v. 
Panchu iaf (1926) 48 All. 348, 93 I.C. 652, 
(’26) A. A. 392 [sale] ; Lai Chand y. 


Ramrup Gir (1926) 53 l.A. 24, 5 Pat. 812, 
93 I.C. 280, ('26) A.PC. 9 [sale by mahant- 
purchnser in possession for 26 years — ^held 
suit barred] ; Raja Manindra v. Sarat 
Cfeandra (1926) 30 C.W.N. 740, 95 I.C. 
644, (’26) A.C. 913 ; Badri Narayan v. 
Mahant Kailash Qir (1926) 5 Pat. 341, 93 
I. C- 303, (’26) A. P. 239 ; Naurangi v. 
Mahant Ram Charan (1980) 9 Pat. 885, 
127 I.C. 817, (’30) A.P. 465. 

(it) Ram Charan Das v. Naurangi Lai (1033) 12 
Pat, 251, 60 l.A. 124, 142 I. C. 214, (’83) 
A.PC. 76. 

(f) MaJuideo Prasad Singh v. Earia PAartt (1935> 
57 All. 39, 62 l.A. 47, 153 I.C. 1100, 
('35) A.PC. 44. 

(m) Vidya Varuthi v, Balusatni (1021) 48 l.A. 
302,315,319,44 Mad. 831, 65 I.C. 161, 
(•22) A.PC. 123. 


S.426 



516 


HINDU LAW. 


S. 428 endowment shall be deemed to be property vested in trust for 
a specific purpose, and the manager of any such property shall 
be deemed to be the trustee thereof.” 


By the same Act the following new articles rvere inserted 
in Schedule I to the Act of 1908 : — 


Description o£ suit. | 

1 

Period of 
limitation. 

' Time from which period 
i begins to run. 

134;A. Suit to <wiVie a iranujtr of immofe- ! 

alJe property comprised in a Hindu, Mu- 
hammadan or Buddhist religious or ehari- | 
table endowment, made by a manager 
thereof for a valuable consideration. i 

Twelve 

j'eara. 

When, the transfer be- 
\ comes known to the 

1 plaintiff. 

1 

1 

48B. Lika suit to set aside a aale of moi fable 
property. 1 

Threo 

years. 

iWhen the sale becomes 
known to the plaintiff. 

J.S4B. Suit by the manager of a Hindu, 1 
Muhammadan or Buddhist religious or 
chan'table endotrroent to recover poseeeeion 
of immoveable property comprised in the 1 
endowment which has been transferred by i 
a previous manager for a valuable consi- 1 
deration. 1 

Twelve 

years. 

iThe death, resignation or 
removal of the transferor. 

\ 

134t!. Like suit to recover poseeeeion of 
moveable property which bas been sold by a | 
previous manager. 

Twelve 

years. 

The death, resignation or 
removal of the aeller. 

1 


Note. — Arts. 134A and 48B app^y to suits by persons interested in tbe exidowmentr. 
Arts. 134B and 134C apply to suits by tbe successor in office of the transferor 
or seller. 


Art, 134-B, 2. imitation Act, applies to suits to set aside a lease of property 
comprised under a rciigiouB endotrinent, and where more than 12 years elapse 
the leaee is binding on the actual mahant and be can only recover the agreed 
rent (n). 

The transfer of a portion of a muth and the properties appertaining thereto by one 
mahant in favour of another in settlement of a Iona fide dispute between the two 
mabants about the office of the mahant of the muth ia a transfer for a valuable considera- 
tioru 

Where the plaintiS’s right had become barred by limitation before the Amending 
Act of 1929 was passed by reason of the adverse possession of the transferee over the 
ZQuth prox>erties from the date of the transfer, it cannot be revived by reason of the 
Amending Act (o). 

( 3 ) WTiere a shebait or mohunt is dispossessed of debutter 
property during his minority he is entitled to sue for possession 
within twelve years from the date of the dispossession or within 

(n} Ram Kishora DaK Mohanta v. Ganga Gobinda 1 (oj Mahanth Bviahuiar Daat v. Saihinath Jhd 
Pali (1837) i Cal. 24Z, 172 l.C. 315, j (1948) 22 Pat. 133, 208 I.O. 129, (’IB) 

(■37) A.C. 305. I A.P. 2S9. 




LIMITATION. 


517 


three years from the date on which he attains majority, 
whichever is the longer period. The fact that he has no 
proprietary interest in dehutter property does not disentitle 
him to the benefit of the provisions of sec. 8 of the Indian 
Limitation Act, 1908 (p). 

* Where a shebait appointed for life died and his heirs took possession of the 
property, the suit by the heirs of the founder to recover the property was hold to be 
governed by Art. 144 and not by Art, 120 (q). 

(4) Suit for possession of hereditary office— A. suit for 
possession of an hereditary office must be brought within 12 
years from the date when the defendant takes possession of the 
office adversely to the plaintiff or the plaintiff’s predecessor in 
title (r). 

Note that the office of a hereditary priest (yajman vritti) is inbhanda and is ranked 
among the hereditary rights of immoveable property (s). 

(p) Jagadindra Ji^ath v. Utmanta (1905) 32 Cal. 

129, 31 1.A, 203. 

C^audnkc^ BakaKSvagKv. 

13 Luck. 344, 168 I.O. 693, ('87) A.O. 373. 


(r) Gnana^anMianaa v veiu uuuu; jsa iuau. zn, 
27 I. A. 69 ; Limitation Act, art. 124. 

(«) Okelabhai v. ffargowan (1912) 36 Bom. 94. IZ 
l.C, BhorBTaNoroin-v.SuraJ Naroin. 
nfiioi All. 815. 193 l.C. 097. (’41) A. A. 1. 


S.42S 



S18 


^.427 


CHAPTER XXII. 

IVIARRlAGE. 

1. “The father, the paternal grandfather, the brother, a sahulya or member of 
the same family, the mother likewise in default of the first, the next in order if sound 
in mind, is to give a damsel in marriage ; not giving becomes tainted with the sin of caus- 
ing miscarriage at each of her courses ; in default, however, of the (aforesaid) givers, let the 
damsel herself choose a suitable husband.** — YajnavaXkya, i. 63-64. 

2. “She who is the mother’s non-8aptmfo and also {non-sagoira) and the father’s 
(non*8opindo) and also (non-so^ofra), is commended for the nuptial rite and holy union 
amongst the twice-bom classes.** — Manu^ iii. 5. 

“But eapinda relationship ceases in the seventh degree (from the mother and the 
father) ; and the aamanodaka relationship ceases if (common) descent and name be not 
known.” — Manu^ v. 60. 

427. Marriage, Minority, Lunacy, Fraud. — [1) Marriage, 
according to the Hindu law, is a holy union for the performance 
of religious duties (t). It is not a contract ; the mere fact, 
therefore, that a marriage was brought about during the 
minority of either party thereto, does not render the marriage 
invalid. The marriage of Hindu children is brought about by 
their parents, and the children themselves exercise no volition (w) . 
But the marriage of a lunatic, it seems, is not valid {v). When 
a congenital idiot’s marriage was arranged by his father and his 
wife gave birth to two sons it was held that he was lawfully 
married («4'). 

(2) A marriage brought about by force or fraud is 
altogether invalid (x) [Sec. 434]. 

It has been held by the High Court of Bombay that marriage is a sanskara or sacra- 
ment. It ^the last of the ten sacraments, enjoined by the Hindu religion for purifying 
the body from inherited taint (y). The same view has been taken by the High Court of 
Madras (z). 

Child Marriage HestrainC Acly 1929, (XIX of 1929'). — This Act restrains the solem- 
nisation of marriages between children. The word “child** has been defined in the 
Act as a male under eighteen years of age and a female under fourteen years of age 
It makes it penal for a male under the age of eighteen years to marry a girl under the 
age of fourteen years. It also prescribes punishment for parents and guardians who 
are parties to a marriage between a minor male and a girl under the age of fourteen 
years. But the Act does not affect the validity of such marriages. The material 
provis'ons of the Act are set out in Appendix X below. 


(i) SundraLat v. Sfiitanaragana (1908) 32 Bora, 
81. 

(u) Purshotamdas v. Purshotamdas (1897) 21 
Bom. 23, 30-31 , Atvw Ram v. Banku 
Mai (1930) 11 Lah. 598, 125 I.C. 369, 
(’30) A L 661. See also Khicaja Muham- 
mad Khan v. Husaini Begam (1910) 
32 All. 410, 37 I.A. 152 [a Mahomedan 
case], 

(3) Afoun Lai v, Chandrabaix (1911) 38 Cal. 
700, 706, 38 I.A. 122, 125, H I.C. 502. 
But see V tnkaiacharyulu v. Ra/ngacharyulu 


(1891) 14 Mad. 316, 318. 

(w) Atmrihammal v. Valhmayil Ammal (1942) 

Mad. 807, 203 I.C. 648, (’42) A.M. 693. 

(x) (1891) 14 Mad. 316, 320, Bu-pra. 

(y) (1908) 32 Boro. 81, *Mpra. 

(z) Qopalakrxshnam v. VemkataroBa (1014) 37 

Mad. 273 [F.B.], 17 I.C. 308, (’14) A.M. 
432, ovemilinff Qovindratulu v, I)erara- 
bhoila (1904) 27 Mad. 206 [a case of 
Bralimana] , Ramutcara v. Veeracharlu 
(1911) 34 Mad. 422, 8 I.C. 195 [a ca^e 
of Sudras]. 



FORMS OF MARRIAGE. 


619 


428. Forms of Marriage— (-f) The ancient Hindu law 
recognized eight forms of marriage, of which four were 
approved forms, and four unapproved. The only forms of 
marriage now recognized are — 

(1) the Brahma form, which is one of the approved 
forms ; and 

(ii) the Asura form, which is one of the unapproved 
forms. 

(2) Where the father or other guardian of the bride gives 
the bride in marriage without receiving any consideration 
from the bridegroom for giving the girl in marriage the mar- 
riage is called Brahma. But where he receives such con- 
sideration, which is technically called sulka or bride’s price, the 
marriage is called Asura, even though it may have been per- 
formed according to the rites prescribed for the Brahma form. 
The test in each case is, whether any consideration was received 
by the father or other guardian for giving the girl in marriage. 
The mere giving of a present to the bride or to her mother as 
a token of compliment to her does not render it an 
Asura marriage (a). 

(3) Hindus belonging to any class may now marry either 
dn the Brahma form or the Asura form. Thus a Brahman may 
contract an Asura marriage, and a Sudra may contract a 
Brahma marriage (6). 

The Brahma form ia the only one now left of the four approved forms. It required 
that the bridegroom should be “ a man learned in the Veda^'^ and it was originally pecu- 
liar to Brahmans. But even a Sudra may now marry in that form. The Asura form is 
the only one now left of the^four unapproved forms. What distinguishes the one forni^ 
from the other ie that in the form it ia a gift of the girl pure and aimplej in the 

^sura form it ia a 5o?e ofjbhe bride for pecuniary consideration. | That consideration ia 
called sulka. Sulka was originally regarded as the properly ofthe bride’s father. Though’ 
marriages by sale fell into disrepute, the custom of paying the sulka remained ; but it was 
no longer regarded as the property of the bride’s father ; it came to be regarded as the 
bride’s atridhana. Though sulka is now regarded as siridhana, it still preserves its original 
character in that it devolves in the first instance, unlike stridhana of other kinds, on 
the bride’s mother and brothers [sec. 146]. 

Of the other three unapproved forms, only the Qandharva requires notice. In an 
Allahabad case it was remarked -that the Qandharva form had become obsolete. In a 
Madras case it was said that the Qandharva form BtiU prevailed in some parts ot India (c). 


(a) Chunilal v. Surajrain (1909) 33 Bom. 433, 
3 l.C. 765 ; Authikesavulu v. Eatnanujam 
(1909) 32 Mad. 612, 3 l.C. 541 ; Hira 
v. Hansji (1913) 37 Bom. 295, 17 l.C. 
949 ; Oovind v. Saviiri (1019) 43 Bom. 
173, 177, 47 l.C. 883, (’18) A.B. 93; 


KaiasaTuUha Mudaliyar v. Parasakti 
Vadivanni (1935) 58 Mad. 488, (’35) 
A.M. 740. 

(b) Bhaoni v. Maharaj Singh (1881) 3 All. 7S8. 
(e) Brinda^anav. Eadhamani (1889) 12 Mad, 72. 


. 428 



520 


HINDU DAW. 


Sa, 

428 ^ 


lif bai -be^Ti Wld in Patna tliat* a assnor ^rl la incoinpc'itJit to contract a marriage in 
Oandk^sna ionsi {d\^ Among Sudras a mamago ifi the Mar form {in wbieb the bn<^ is 
gt?m to the bridf-groom with %word or dagger in place of the bridegroom) is not a 
^aBd itssrriage, in the abajence of proof that the ordinary ceremtiiiies of a HjEtda mirriage 
were perfoiTDod fej. 

429. Presumption as to fom. — When there is a question 
as to whether a marriage was in the Brahrtia form or the 
Asura form, the Co urt will presum e, even where the parties 
are Sudras, that it was in th e Brahna fo rm ; in other words, 
th at no consicferalion. tor- ldie marriage passed from the bride- 
goom to the father or other guardian of the bride. But 
this presumption may be rebutted by showing that the marriage 
was in the Asura form (/). 

Where a woman dies without leaving issue, if her marriage was in the Brahma ftjrm 
har elridhana devolves in one way, and if in Asura form, it devolves in another way 
(aecB, 147, 151). Hence the importance of the distinction between the two fomia of 
marriage. The essential ceremonies for these forms of marriage are the same as will be 
seen presently. 

Cutchi Memont . — For the purposes of succession to the stridkanaol a Cutchi Memon 
female, her marriage, though performed according to Mahomedan rites, is regarded as 
one in the approved form (g). But see the Shariat Act, 1937, and the commentaries 
thereon in MuUa's Sfahomedan Law, 12th Ed., p. 3 el seg. 

For presumption as to legality of marriage, see sec. 438. 

430. No restriction as to number of wives,— A Hindu may 
marry any number of ivives, although he ha.s a wife or 
wives living (h). 

431. Only one husband at a time. — A woman cannot 
marry another man while her husband is alive, except where 
her marriage has been dissolved by divorce [s. 441]. 


432. Remarriage of widows. — ^The remarriage of Hindu 
widows is now expressly legalized by the Hindu Widows 
Bemarriage Act, 1856. 

Forfeiture of property by rewirriage . — See notes to sec. 43, No. 4 (widow), under the 
bead “ remarriage.” 


433. Who may give in marriage. — (i) The Sastras enjoin 
the marriage of a female before she arrives at puberty, and 


(ti) Bamdeb Dns v. Raja Brajfunder Deb (1038) 
17 Pat. 134. 

(e) Ramsaran Singh v, Mahabxr Sewak Singh 
(1034) 61 I.A. 106, 147 I.C. 667, ('84) 
A.PC. 74. 

(/) Muasumat Thakoor Deyhte v. i2at Baluk Ram 
(1866) 11 M.I.A. 189 ; Cl^nUal v. Suray 
ram (1909) 33 Bom. 483, 437, 8 I.C. 765 ; 
Jagannalh v. Narayan 34 Bom. 553, 
7 I.C. 459 ; Authiketavulu v. Ramanujam 


(1909) 32 Mad. 512, 3 I.C. 541 ; Hira v, 
Uansji (1913) 37 Bora. 295, 17 I.C. 949 
[remarriage of divorced Koli woman] ; 
Kiihan Dei v. Sheo Paltan (1926) 48 AU. 
126, 90 I.C. 868, (*26) A.M. 1 [marriage 
in Karao form] ; Kamla Prasead v. MurH 
M’finoAtff (1934) 13 Pat. 550, 152 I.O. 446, 
(’34) A.P. 898. 

(g) Moosa \. Haji Abdul (1906) 30 Bom. 197. 
(A) Vtraivami v. Appoivami (1863) 1 Mad. 
H.C. 375. 



WHO MAY GIVE IN MARRIAGE. 


621 


prescribe rules for guardianship in marriage. The following 
persons are qualified, in the order mentioned below, to give a 
girl in marriage : — 

According to the Mitakshara school— 

(1) the father ; 

(2) the paternal grandfather ; 

(3) the brother (i). 

(4) other paternal relations of the girl in order of 
propinquity ; 

(5) the mother. 

According to the Bengal school. — The Bengal school places 
the maternal grandfather and maternal uncle before 
the mother. In other respects the rules are the same 
as under the Mitakshara. 

(2) The marriage of a male minor is not prohibited, and 
his lawful guardian may consent to his marriage. 

Though the mother is postponed to the paternal male relations, it does not 
follow that she, who in the absence of the father, is the legal guardian of her daughter 
[sec. 618], is to have no voice at all in the choice of a husband for the daughter. T he only 
reason why the mother is postponed is that she cannot perform the ceremony of giving the 
girl in marriage called kanyadanat and even when in default of paternal male relation 
she makes the gijt, she has to employ some male to perform that ceremony (j). The 
Madras High Court has gone further and said that even if there be a paternal grandfather, 
the mother as the natural guardian of her daughter is entitled to select a husband for 
her {k). The Lahore High Court is inclined to the same view (Z). A step-mother has 
no right to give her step-daughter in marriage, if there is a paternal grandmother (ffi). 

Paternal relatives aiid maternal relatives . — So long as there are competent paternal 
relatives in existence, the maternal relatives of a girl have no authority to give her ia 
marriage ; but where the paternal relatives refuse to act or have disqualified themselves 
from acting, the maternal relatives acquire authority to contract marriage on behalf of 
the girl (w). 

Re-marriage of widoivs . — As to the consent necessary to the remarriage of minor 
widows, it is provided by sec. 7 of the Hindu Widows Bemarriage Act, 1856, that if^the 
widow remarrying is a minor whose marriage has not been consum^natsd, she shall not 
remarry without the consent of her father, or, if she has no father, of her paternal grand- 
father, or, if she has no such grandfather, of her mother, or, falling all these, of her elder 
brother, or, failing also brothers, her next male relative. A marriage made in contraven- 
tion of the above provisions, e.g., a marriage of a widowed girl with the consent of her 
mother-in-law (o), may be declared void by the Court, but not after it has-been consum- 
mated. In the case of a widow who is of full age» or whose marriage has been consumrnated^ 
her own consent is sufiBcient to constitute her remarriage lawful and valid. 


(i) Wei Ramy. Emperor (’35) A.A. 920. 

(?) Bailiamhoiew Jamnadas (1913) 37 Bom. 18, 
17 I.C. 9.>. 

(i) Ranganaihiv. Ramanuja (1912) 35 Mad. 728, 
734, 11 I.C. 570. 

(/) Mst. Indiv. Qhania (1Q20) 1 Lah. 146, 53 I.C. 
783 ; Mst. Juvani v, Mula Ram (1922) 3 


Lab. 29, 67 I.C. 253, ('22) A L. 112. 

(m) Ram Bunseey. Soobh KoonwaieeilSQy) 7 

R 321 

(n) Kaaluri v. Panna Lai (1916) 88 All. 520, 86 

I.C, 245, (’17) A.A. 451. 

(o) Sant Ram v. The Crown (1930) 1}. I#»h. 178, 

189, 124 I.C. 310, l’29) A. L. 713. 


S.433 



522 


HINDU LAW. 


s*. 

433,434 


The Indian Majority Ac(, 1875. — llmority, according to the llitakshara Bchoo! 
terminatPs on completion of the eixtoenth year ; according to tliu Bengal school, on com- 
])ktion of the fifteenth year. The Indian Majority Act, 1875, does not apply to Hindus 
in matters of marriage, divorce and adoption. 


434. Marriage without consent of guardian.— (2) The pri 
mary duty, and the correlative right, of giving a girl in 
marriage, rests with the father. This right is not lost merely 
because the father has been convicted of theft or any other 
ofience not connected with domestic relations (p). But 
where the father has de.serted his wife and daughter, the 
mother can give the daughter in marriage without the consent 
of the father (q). Even where the father is alive and otherwise 
capable of giving away his daughter, the Court will not declare 
a marriage invalid, merely because the daughter was given in 
marriage by the mother without his consent, provided the 
necessary ceremonies have been performed, and there has 
been no force or fraud (r). This rests on the principle that 
guardianship for the purpose of marriage is not so much a 
right as a duty, and the consent, therefore, of the guardian is 
not a condition precedent to the validity of the marriage (s). 
There is a difference of opinion among Hindu text-writers 
as to the correctness of this principle («). Whatever the 
correct view may be, the rule established by the decisions is 
that a marriage which is duly solemnized, and is otherwise 
valid, is not rendered invabd, because it was brought about 
by misrepresentation to the guardian {u) or without the consent 
the guardian for the purpose of marriage (p), or in contra- 
vention of an express order of the Court [w). But a marriage 
though performed with the necessary ceremonies, may be set 
aside by the Court, if it was brought about by force or fraud (a;). 


(2) The rule referred to in the preceding sub-section 
applies only where a marriage has been actually celebrated. 
But while there is only a contract for marriage, it is competent 


< 2 ) 

ir) 

(«) 




^ (1808) 12 Boffl. 

K^s^lchand v. Bai Mani (1887) U Bom. 

V enkaiacJiarynlu v. Rangacharyulu (1891) 14 
Mad, 310. 


(1887) 11 Boin, 247, supra. 

See Ghose’B Hindu Law, 3rd ed., pp 801 
803 Bauerjl’s Law of Marriage, 5th ed 
pp. C5'56 ; 0. Sarkar’8 Hindu Law, 7th ed 
p. 165. 

Ehxtesh Chandra Chakrabarii v Ewnen 
(1937) 2 Cal. 221, 108 I.C. 708, ('37) A ( 
214. 


(«■) Khushalchand v. Bai ^lani (1887) 11 Bom. 
2.M \Venkaiavharyitlu v. Rangackaryulu 
(1861) 14 Mad. 310 . Mulchand v. Bhudhiu 
(1898) 22 Bom. 812; Qhaziw Sw1tu( 1897) 
19 All. 515 ; Brindabun v. Chuiuha 0880) 
12 Cal. 140 , Kasturi v. Chiranji Bai 
(1913) 35 All. 205, 18 I.C. 027, Ga),<i 
Nand v. The Crown (1921) 2 Lah. 288. 04 
I C. 500, (’22) A. L. 139. 

(w) Bai Viwali v. Moti (1898) 22 Bom. 509. 

(«) (1891) 14 Mad 316, ; (1808) 22 Bom. 

812, supra. 



IDENTITY OP CASTE. 


523 


to a guardian to sue for an injunction to prevent the marriage 
of his ward to a person of whom he does not approve and the 
Court may grant an injunction subject to such terms as it may 
consider necessary to impose on the guardian for the benefit 
of the minor {y) 

Factum valet qtiod fieri non debuit — It is a doctrine of the Hindu law enunciated by 
the author of the Dayabhaga and recognised also by the Mitakshara school, that “ a 
fact cannot be altered by a hundred texts ” The “ texts ” referred to above are texts that 
are directory as distinguished from those that are mandatory The meaning of the 
doctrine is that where a fact is accomplished, in other words, where an act is done and 
finally completed, though it may be in contravention of a hundred directory texts, the fact 
will stand, and the act will be deemed to be legal and binding The maxim of the Eoman 
Civil law corresponding to this doctrine is factum valet quod fieri non debuit which means 
that what ought not to be done is valid when done. It is otherwise where an act is done 
in contravention of texts hich are in their nature mandatory ^ The texts which prescribe 
rules for the consent of guardians for the purpose of marriage have been held to be merely 
directory ; hence a marriage once performed and solemnized, though it bo without the 
consent of the guardian, has been held to be valid. It has similarly been held that the 
texts which prohibit the adoption of an only son, and those which enjoin the adoption of 
a relation in preference to a stranger, are only directory ; therefore, the adoption of an only 
eon, or a stranger in preference to a relation, if completed, is not invalid In cases such 
as the above, where the texts are merely directory, the principle of factum valet applies, 
and the act done is valid and binding (z) But the texts relating to the capacity to give, 
the capacity to take, and the capacity to be the subject of adoption are mandatory 
Hence the principle of factum valet is ineffectual in the case of an adoption in contravention 
of the provisions of those texts (a) 

435. Identity of caste or of sub-caste.— (-^) A marriage be- 
tween persons belonging to different sub-divisions of the same 
caste is not invalid (6) 


A marriage between * Grihasth Goshain and a woman of 
another caste initiated as a goshain is valid (c) 


(2) For the purposes of marriage, converts to Hinduism 
are regarded as Sudras Therefore, the marriage of a Hindu 


(y) Kashi, in the matter of (1882) 8 Cal 260, 

Shridhar v Hiralal (1888) 12 Bom 480 
Nanabkai v Janardhan (1888) 12 Bom 
110 Kasturi v Panna Lai (1910) 38 All 
520, 30 I C 245, ( 17) A A 4ol (damages 
for wrongful injunction] 

(z) Wooma Dace v Gokoolanund (1878) 3 Cal 

587 5 I A 40 Balusn ^ lialusu (1899) 
22 Mad 398 20 I A 113, (1898) 22 
Lorn 812 supra 

{a) Lalshmappay a (187 )) 12 Bom HC 

364 398 (1899) 22 Mad 398, 26 I A 113 
144 supra Ganga \ Lehhraj (1887) 9 
All 253 296 297 , Gopal v Uanmant 
(1879) 3 Bum 273, 293 294 Pada^lTaf 
V llamrai (1889) 13 Bom 160 167 

(1898) 22 Bom 812 supra 
(b) Marriage between persons belonging to Sudra 
sub castes , (1809) 13 M T A 141 US 159, I 


supra Itamaniani v Kulanthai (1871) J.4 
MIA 346 Upoina v Bholaram (1888) 
lo Cal 708 Fakir jauda v G(i7ij7i 0897) 
22 Bom 277 Bxswanaik v Shora’^hibala 
(1921) 48 Cal 92b Ob I C 590 ( 21) 

AC 48 Sohdr isinqh \ Ka li Singh 
(1929) 10 Lah 372 112 I C 593 ( 28> 
A L 70b (Jat male and Maskadi femalel 
HarPrasady hemil (1 )2 ) 47 All 169 
83 I C 163 ( 2 j} I a 26 (Bisa husband 
and Da-*! vife] Gopi h/i’ihna Kaiun 
dhan v Ml Jagjo (103b) b3 T A 2)) 
58 AU 397, 38 Bom Lit 7d1 162 IC 
993 ( 36) A PC 198 Kkxteesh Chandra 
Chakrabarlxy f mperor (1937) 2 Cal 221, 
168 I C 708 ( 37) A C 214 (A ca>e of 
Brahmin sub castes ) 

(r) KxuraDeviv I/idra Def t (1943) All 703 210 
I I C 404 ( 43) A A 310 


Ss. 

434,435 



524 


HINDU LAW. 


S. 435 


who is a Sudra by caste with a Christian woman who has 
become a convert to Hinduism before the marriage, is treated 
as a marriage between two Sudras, and it is valid if it other- 
wise complies with the requirements of the Hindu law {d). 

The second marriage of a person who was reconverted from 
Christianity to Hinduism during the life-time of his first wife is 
valid (e) . 


(o) As to identity of caste — The ancient texts prohibited 
prathiloma marriages, i.e., between males of lower caste and 
females of higher caste. Accordingly such marriages have 
been held by courts to be invalid (/). But Anuloma marriages 
were permitted and recognised by the texts {g). Accordingly 
the Bombay High Court held that a marriage between a Vaisya 
male and a Sudra female {h), or a Brahman male and a Sudra 
female is valid. In the latter case it was held that the son born 
of such a marriage is legitimate and is entitled to inherit a one- 
tenth share in the estate of his uncle, the other nine-tenths 
going to the reversioner of the uncle {i). The High Court of 
Calcutta has held that a marriage between a Brahman and a 
Sudra woman both of whom are Jati Vaishnavas is valid {j). 

Even Anuldma inarnage^ have been held to be invalid in Allahabad and Madras (i). 
It is submitted that these eases are incorrectly decided and require reconsideration. 
Where an action prohibited by law is practised by the people in n number of instances 
this may create a positive custom ; but where an action permitted by law has fallen into 
disuse for a long time this cannot create a negative custom. The act still remains valid 
if it is taken up alter long disuse. 

Marriage oj iilegitimoie persons. — the ea'se of tfie marriage oi an illegitimate person 
who, strictly speaking, belongs to no caste, he or sho must be treated as belonging to the 
caste the members of which have recognised him or her as a caste follow (/). 

Mixed marriages. — I’ho Hindu law lays down certain rules for determining the caste 
of offspring of unions between parents belonging to different castes, and gives separate 
names to the mixed castes to which such offspring belong. When intermarriages wers 
permitted by ancient Hindu law, children born of mixed marriages were termed Anuloma, 


(d) Muthusami v, Masilamani (1010) 33 Mad. 

342, 5 I.C. 42, where the earlier decision-s 
are reviewed. 

(e) Goona DiiTgaprasnd Rao alias Pedda Babu v. 

Cri^ia Sundarasan Huami and Ors. (1040) 
Mad 053, 190 I.C. 8G8, ('40) A.M. 513. 

(/) Lakshmx v, Kahan Sxnq (1900) 2 Bom. L.R 
128 [Kshfttrij a ‘naleand Brahman female]; 
Bui Kashi V. ./ainuodas (1012) 14 Bom. 
L.ll 547, 10 I.C. 133 [Sudra male and 
Brahman female] ; Munni Lai v. Shiama 
(1920) 48 All. 670, 97 I.C. 347, ('26) A.A. 
656 [Sudra male and Vaishya female]. 
<g) ilanu, Ya)navalkya, Sankha, Gouthama, 
Vyasa, and Vishnu and Mitakshara. 


(A) BaiGulab v. Jiu'anlal{l922) 46 Bom. 871, 65 
I.C. 002, ('22) A.B. 32. 

(i) Natfia v. Hf(Ma ChoUilal (1931) 55 Bom. 1, 

130 I.C. 17, (’31) A.B. 89. 

(j) NQh7\Qksha Rajani (1931) 58 Cal 1392. 

134 I.C. 1272. (*31) A C. 741. 

(k) Padatn Kurnari v. Sura) Kuman (1006) 28 

All. (456 Brahman male and Kshatriya 
female] ; Sivayamjmkula Subbaramayya v. 
Swayainpakula Venkatabulbamma (1941) 
Mad. 980, (’41) A.M. 513. 

(l) In the mailer of Painkuman (1891) 18 Cal. 

204; Emperor v. Madan Gopal (1912) 34 
All. 580, 10 I.C. 613. 



PROHIBITED DEGREES. 


525 


jas, that is, offspring of Aniiloma marriage, and their cast© was neither that of their father 
nor that of their mother. They belonged to an intermediate caste higher than that of 
their mother, and lower than that of their father. Tlius a son begotten by a Brahman 
upon a Kshatnya wife is a Murdhavasikta, upon a Vaisya wifo is an Arabashta, and 
upon a Sudra wife is Nishada or Parasava. A son begotten by a Kshatriya on a Vaisya 
wife is a Mahishya, and upon a Sudra wife an XJgra. A son born of a Vaisya by a Sudra 
wife is a Karana. It has accordingly been held that the illegitimate son of a Kshatriya 
by a Sudra woman is not a Sudra, but of a higher caste called Ugra (rn). 

This section does not apply to Arya Samajists (Act XIX of 1937). 

The Indian Christian Marriage Acf, 1872. — As to marriages between Hindus and 
Christians, see the Indian Christian Marriage Act, 1872, and the under-mentioned 
case (n). 

436. Prohibited degrees of relationship.- — No marriage is 
valid if it is made between persons related to each other within 
the prohibited degrees, unless such marriage is sanctioned 
by custom (o). 

A karewa marriage between a father-in-law and daughter- 
in-law among the Jats (who are presumed to be Sudras) is 
invalid and cannot be validated by custom (p). 


The following are the rules regarding prohibited degrees : — 

( 1 ) A man cannot marry a girl of the same gotra or pravara, 
the theory being that his father and the girl’s father are both 
descendants of a common ancestor in the male line. It has 
been held in Allahabad that where a widow has remarried a 
person belonging to her father’s gotra the marriage is not 
invalid as she has not reverted to her father’s gotra by her 
husband’s death and her issue is legitimate ( 5 '). This rule does 
not apply to Sudras, the reason given being that Sudras have 
no gotra of their own. 


This rule is called exogamy. Its effect is that a man cannot marry the daughter of 
an agnate. The next rule provides for the case where the girl is a cognate relation of the 
boy, that is, related to him through a female, 

(2) A man cannot marry a girl who is his sapinda. This 
rule is accepted both by the Bengal and the Mitakshara schools. 
But there is a difference of opinion between the two schools 
as to who are sapindas for marriage. 


(m) Brindaviuui v. Radhamani (1889) 12 Mad 
72, 78-80; Jiuala Singh v. Sardar (1010) 
41 All 02'J, 15 I.C. 216, (’19) A.A. 317. 

(n) CheUt Chelti (1909J Probate 07. 

(o) Banerjee’s “Law of Marriage,” 6th ed., 

pp. 70-71, 269-274, 285, 289. 


(p) Jagnohnr Singh \\SadhitRamil934) 15 Lah. 
C88, 140 I G 94, ('34) A. L. 283. 

Radha Xnth Mukerji v. Shaktipada Mnkerjv 
(1930) 58 All. 1053, 164 I.C. 595, (*36) 
A.A. 624. 


Ss. 

433 , 436 



526 


fflNDU LAW. 


S.436 


Bengal school. — According to tte Dayabhaga law, a man 
cannot marry a gixl — 

(a) if sbe is within the 7th degree in descent from his 
father or from one of his father’s six ancestors in 
the male hne ; 

(b) if she is within the 5th degree in descent from his 
maternal grandfather or from one of his maternal 
grandfather’s four ancestors in the male line ; 

(c) if she is within the 7th degree in descent from his 
father’s three technical bandhus, or from one of their 
six ancestors through whom the girl is related to him 
[sec. 46, sub-sec. (4), Pitri Bandhus] ; 

(d) if she is within the 5th degree in descent from his 
mother’s three technical bandhus or from one of 
their four ancestors through whom the girl is related 
to him [sec. 46, sub-sec. (4), Matri Bandhus](;-). 

Exception. — A girl, though related within the degrees 
mentioned above, may be taken in marriage if she is removed 
by three gotras from him (.s). 


Mitakshara school. — According to the Mitakshara law, a 
man cannot marry a girl if their common ancestor, being 
traced through his or her father, is not beyond the seventh 
in the line of ascent from him or her or, if their common 
ancestor, being traced through their mothers, is not beyond 
the fifth in the line of ascent from him or her (t). In other 
words, descendants up to the seventh degree through males 
or females of paternal ancestors up to the seventh degree, 
and descendants up to the fifth degree of maternal ancestors 
up to the fifth degree, are excluded as being sapindas {u). 


In the iladras Presidency tho rules restricting marriages between cognate sapindas 
are practically obsolete, e g.^ the marriage of cognate first cousins (children of brother and 
sister) is common among Telugus. It was recognised by Baudhayana. Tho marriage 
of a male to his sister s daughter is common among Keddis. The marriage of cognate 
sapindas beyond these limits has always been regarded as lawful and as not prohibited 
in the whole of .Southern India — except between cousins who are children of two sisters. 


(r) Brian Majumdar linnjit Lai Sen Giipla 

(1942) 2 Cal. 445, 202 I.C. 33, ('42) A.C. 
458. 

(s) Banerjce's " Law of Marriage/* 6th cd., 

PP. 69-70. 


(f) Havirhanilra v Vinagnk (1914) 41 I. A. 2&U. 
309-311. 42 Cal. 384, 417-419, 25 I.C 290, 
(*14) A.PC. 1. 

(u) Bhattacharya’s “ Hindu Law,” 2ud ed. . 
p. 90. 



PROHIBITED DEGREES. 


527 


(3) In computing the degrees for the purposes of S. 436 
sub-sec. [2), the common ancestor and the person in question 

are each to be counted as one degree. 

(4) Eelationship by marriage is not by itself an impe- 
diment to marriage. Thus a man may marry the daughter 
of his wife’s sister (u). 

Sagotra. — Two persons are sagoirat that is, of the same gotta or family, if both of them 
are descended in the male line from the Rishi or sage after wliose name the goira is called, 
however distant either of them may be from the common ancestor, 

Samana-pravara.—^Yto persons are Satnana-pmvara, that is, of the same pravara, if 
they are deacendarvts in the male line of the three paternal ancestors of the founder of a 
gotra (jy). 

Snb-sec. (2). — The following diagram (a;) will enable the reader to understand the 
four rules applied by the Dayabhaga school to determine sapindadhip : — 



In the above diagram P is the bridegroom ; is his father ; Mj is his mother ; ‘ 

IS his father’s mother ALj is his mother’s mother. 


Fj to Fiy are his 7 paternal ancestors in the male line. Fg to F^g are his father’s 
5 maternal ancestors in the male Uhe. Fjg to Fj^ are his mother’s 5 paternal ancestors 
in the male line, Fjg to F^q are his mother’s 3 maternal ancestors in the male line. 
Sj, Sg and Sg are his father’s bandJi^is. and Sg are his mother’s bandhus. 


According to sub-rule (a), P cannot marry a girl within the 7th degree in descent 
from any one of his 7 paternal ancestors F^ to F^. 


According to sub-rule (b), P cannot marry a girl within the 5th degree in descent 
from any one of his mother’s 5 paternal ancestors to Fj.^ [Fjg is P'b maternal 
grandfather.] 

<d) Rn/ai endrav ./fiyamni (1807) 20 Mad. 283 ; } (lo) G. Sarkar's *' Hindu L.tw," 7tli ed p 89 

Rnmafc-nJina v. (1020) 43 Mad. (r) The diaumm is reproduced tr(*m G. Sarkar’a 

830, 50 I.('. 2(i8, (’20) A M, 715. I “Hindu Law,” 7th ed , p. 140. 



528 


HINDU LAW. 


Ss. 

436 , 437 


For tire purposes of sub-rule (c), the father's bandhus are restricted tt^the three 
relations expressly mentioned as such in the Mitakshara, namely : — 

(\) Father’s [F^^] father's [F2] sister's [D^^] son, that is, ; 

(S) ,, ,, mother’s [jVy sister’s [D2] son, that is, .Sg ; 

(y) „ mother’s [^y brother’s [Bj] son, that is, Sjj. 

According to sub-rule (c), P cannot marry a girl within the 7th degree in descent 
from — 

(■) Sg or S3; 

[(11) Fg to F,, ancestors of Sj, already included in sub-rule (a)] ; 

(ill) anj’ one of the 5 persons Fg to ancestors of S, and Sg ; 

(ii') Bj, father of Sg. 

For the jiurposes of sub-rule (d), the mother’s bandhua are restricted to the three 
relations expressly mentioned as such in the Mitakshara, namely 

(X) Mother’s [Mj^] father's [Fjg] sister's [Dg] son, that is, S,j ; 

(i3) „ „ mother's [Mg] sister’s [Dj[ son, that is, Sg ; 

(y) „ „ mother's [Mg] brother's [B.g] son, that is, Sg . 

According to sub-rule (d), P cannot marry a girl within the 5th degree in descent 
from — 

(!) S4, S. orSg; 

[(ii) to Fj 7, ancestors of S^, already included in sub-rule (b)] ; 

(ill) any one of the 3 persons Fjg to Fgg, ancestors of Sg and Sg ; and 
(ir) B.-i, father of Sg 

The reader will find the above rules in Dr. Baiierjee’s “ Law of Marriage The 
rules relating to the Bengal school are set forth in Kaghunandana’s Udmhatnttva, a work, 
of authority 111 Bengal, and are repeated by Kamalakara Bhatta in his Nirnayaaindhu, 
a .work of authority in the Benares school. The Bengal rule.s are in accordance with the 
interpretation put by Raghunandana upon the text of Mann, being text No. 2 cited 
at the commencement of this Chapter. 

There is no difference between sapinda-relationship in respect of marriage and that 
in respect of inheritance (y). 


437. Marriage ceremonies.— (i ) There are two cere- 
monies essential to the validity of a marriage, whether the 
marriage be in the Brahma form or the Asura form, namely — 
\(1) invocation before the .sacred fire, and 
y2) saptajKidi, that i.s, the taking of seven steps by the 
I bridegroom and the bride jointly before the sacred 
fire. 

The marriage becomes completed when the seventh step is 
taken ; till then it is imperfect and revocable {z). Consum- 
mation is not necessary to make a marriage comj^lete and 
binding (a). 


(y) BubiiLdiv Xanku Ham ’■J.H.'u], ^ 

lUDUthnndra v Vmui/ufr (1914) 41 I A* 
290, you, 311, 42 (Jal. 384, 417-419. 23 
I.C. 290, (’14) A.BC 1. 

(z) Chunilal v, Svrajram (1900) 33 Bom. 433, 

437-438, 3 I.C. 765; Authikesavalu v 
Ramanujam (1909) 32 Mad. 512, 519-520, 


3 I (J 341 , Bnitdiibon \ L'hundni (IS^'b) 
12 Cal 140,143. 

(o) Adm.'iien, of Madras \ ^l?ufnc/ac/jan (1880) 
9 Mad. 400, 470 , Vadaji v R}il.mab<n 
(1880) 10 Jioin 301, 311; Bmperor v. 
Mu/ic^u Ram (1030) 38 AU 402, 158 I.C. 
1007, (’30) A. A. 11. 



SPECIAL MARRIAGE ACT. 


529 


(2) A marriage may be completed by the performance of 
ceremonies other than those referred to in sub-section {1), 
where it is allowed by the custom of the caste to which the 
parties belong {h). 

Marriage of widows — According to the Hindu law, no religious ceremonies are 
necessary mThe case of maiiiage of widoiis. See the Hindu Widows’ Remarriage Act, 
1856, s. 6. 

Betrothal — Betrothal precedes marriage , but unlike marriage it is revocable, so 
that a girl betrothed to one person may be validly given m marriage to another person 
though in such a case a suit may be brought for damagea against the father or other 
guardian of the giil who biought about the contract of marriage Betrothal is no more 
than a promise to marry. In the case of minors, the promise is given by the father or 
other legal guardian. Where there is a breach of the promise, the appiopriate remedy 
IS not specific peiformance, but damages (c). AVhen the plaintiff bridegroom dies pending 
a suit for damages, his legal representative can only recover the out of pocket expenses 
incurred duiing betrothal (d) 

438. Presumption as to legality of marriage.— Where it is 
proved that a marriage was performed in fact, the Court will 

presume that it is valid m law (e), and that the necessary 
^''h^emonies have been performed (/). A Hindu marriage is 
recognised as a valid marriage m English law (y). 

Piesumplwn as io marriage and legiiimacij — There 13 an f^tremely strong presump 
tion m favour of the validity of a marriage and the legitimacy of its olLpiing if from 
the time of the alleged marriage the parties are recognized by all persons concerned as 
man and wife and are so dcsciibed in important documents and on impoitant occasions 
The like piesumption applies to the question whether the formal requisites of a valid 
marriage ceremony were satisfied (/i) Similarlj the fact that a woman was liviiig under 
the control and piotection of a man who generally lived with her and acknowledged her 
children raises a strong presumption that she is the wife of that man. But tlus presump- 
tion may be rebutted by proof of facts showing that no marriage could have taken 
Iilace (i). 

439. Special Marriage Act, 1872. — It is now provided 
by the Special Marriage Act, 1872, as amended by the Special 
Marriage (Amendment) Act, 1923, that niariiages may be 
celebrated before a Kegistrar between peisons each of whom 
professes one or other of the following religions, that is to say, 
the Hindu, Buddhist, Sikh or Jama religion 


(/) Rally Churn v Dukhee (1880) *>(11 1)02, 
Uurry Churny A imai (1884) 10 CgJ 138 
Bampiyar v Dcia liuma (1923) 1 lluig 
129 7b I C 475, ( 23) A R 202 
1 ) Pxushotamda’i v ruishoiamdas (1807) 21 
Bom , Uamhhaty J iwi t (1892) !(> 
Boin b7d [.Pint for re.-.tor itioii of prtsuits] 
JeJiisondns ^ Konchoddit', (1 H") 41 Bom 
137, JS I C jGb ( lb) \ B »i Rlnmji 
V Adwi (191j) J9 Bom b82, 28 I C 408, 
(’15) A B 300 litroinrjiig breath of 
promi >'0 of marrncel 

(d) Balubhai v NtDiahhai (1920) 44 Bom 440 
55 I C C24 ( 20) A. B 22) 

(«) Inderuu v iiajjtdsjf tifui/ (1869) 13 MIA 


141 I iS , 1 akinjauda ^ (Tufiyi (1898) 22 
Bom 277, 279 

(/) ]\Tov)iJal\ ChandiubfilL (l)]\) 38 Cal 700, 
38 I \ 122, 11 I C )U2 , ISrmdabun \ 
Chundra 12 Cd i40 Bin Diuh 

Moti (lb08) - Bom nU • Adinmistriitor 
General of Malm \ A?i(j»rfac/jnn (1886) 
9 Mad 4(>o Appibtii \ Rhvnji Looterji 
(lOJb) CO Horn 4 j') 38 Bom L U 77, 
1C2 1 CV188, ( 30) A B 138 
(g) Srinvnsan\ o«nn 73 Law Times 102 

{h) (1911) 3S bal TOO 38 I A. 122, 11 1 C 
502 saj ra 

(i) ChellaaiM il ' hanjaiiatham (1911) 34 Mad 
277, 12 I C 247 


Ss. 

437 - 43 » 



530 


HINDU LAW. 


Ss. 

439-441 


'Xne marriage under the Special Marriage Act, 1872, of an}' member of an undivided 
iamilv shall be deemed to effect his severance from such family. Further, a pti-on 
prr.h-i,;ng any of the above religions and marrying under the Special Marriage Act, 1S72, 
shall have the same richts and be subject to the same disabilities m regard to any right 
of succession to anv jiroperty, as a person to whom the Caste Disabilities Removal Act, 
1850, applies. Also the succession to the property of any such person, and to the property 
of the issue of such marriJge, shall be regulated by the provisions of the Indian Succession 
Act, 1925. Xo such nerson .shall have any right of adoption, but his father shall, if he 
has no other son living iiavc the right to adopt another person as a .son under the law 
to which he is subject. .See the Special Marriage Act, 1872, ss 22-26 


See. 24 of the Art introduced by the Amending Act of 1925, is not retTospeetive ijj 
under^his Act. 

A / \ Tnarri.age between a Hindu and a person who is not a Hindu, Buddhist, Sikh or 
Jain is a nulity ik). 


440. Marriage expenses.— In the casr u: a joint family 
governed by the Mitakshara law, the joint family property is 
liable, while the family is still joint, for the legitimate marriage 
expenses of 7nale members of the family (?), and also of the 
daughters of male members of the family (?h). The decision in 
Subbayya v. Anafttha 53 Mad. 84 (p. 376 supi'a) implies that 
a father in possession of a joint family property is micler a legal 
obligation to get his daughter married. It follows that if a 
father so in possession neglects his duty, the mother may per- 
form it and recover the expenses from her husband. The 
decision in Sundari Amrnal v. Subrahma^iia Ayyar 26 Mad. 505 
requires reconsideration. 

The texts enjoin the payment of expenses of sanakaras or sacraments out of the 
family property. Marriage is a sanskara^ and its expenses, therefore, are to be provided 
for out of the joint family propert)’. A debt contracted for the marriage of a coparcener 
or the daughter of a deceased coparcener in a joint Hindu family is a debt contracted 
for a family purpose, and therefore, for the benefit of the family. See ss. 243 and 427. 

As to expen.-^ea of marriage after the institution of a suit for partition, see s. 304(2). 
As to the power of a widow to provide for the marriage expenses of her daughter out of 
her husband's estate, see a. 181B (iv). 


441. Divorce.— (i) Divorce is not known to the general 
Hindu law. The reason is that a marriage, from the Hindu 
point of view, creates an indissoluble tie between the husband 


0) Thakur Bax v. AUavar fl935) 5B Mad. 1004, 
1 d7 I C. 77, (’35) A M 653. 

(it) Jlatan Behan v. Margaretha (1039) 1 Cal 
201 . 

(i) Sundrahai v Hhii namynna (1008) 32 Bom. 
81 ; Bhogirntfix v, Jokhu Hum (1910) 32 
All. 57.'i, 6 I.C. 465; fiopalknshnam v. 
Venkalanaroha (1914) 37 Mad 273. 17 I.C. 
308, (’14) AM 432 fV.B ], overruling 
Goiiridrazulu v, Vetarabbotla (1904) 27 


Mad. 200; lui/nef-narn v. Vt‘cra''JtarJii 

(1911) 34 Mad 422, 8 IC ]‘'5: Deln 
Lai V. ]\nn>} Kii.horc (1922) 1 Pat 206, 65 
I C. 3)5, (’22) A P 22 

(m) V Kallapirniii (1900) 23 Mad 

512; v. (1903) 20 

Z)Iad 497; llanganaiki v B.amaniijti 

(1912) 35 Mad 728, 11 I.C. .">70 . .‘Snuxui&a 
V. Thiruiengndathaii/nngar (1915) 38 Mad. 
556, 23 I.C. 264, (’14) A.M 226 [iinmurru'd 
Bisters], 



DIVORCE. 


531 


and the wife. Neither party, therefore, to a marriage can 
divorce the other unless divorce is allowed by custom («). 

{2) Change of religion or loss of caste does not operate as 
a dissolution of marriage, nor does the adultery of either party, 
nor even the fact that the wife has deserted her husband and 
become a prostitute (o). 

(3) As to change of religion, it is now provided by the 
Native Converts’ Marriage Dissolution Act, 1866, that where 
a Hindu becomes a convert to Christianity, and in consequence^ 
of such conversion, the husband or wife of the convert deserts 
or repudiates the convert, the Court may, on a petition 
presented by the convert, pass a decree dissolving the marriage, 
and the parties may then marry again as if the prior marriage 
had been dissolved by death. Conversion does not operate 
per se as a dissolution of marriage (p). 

Divorce by custoiru — It has been held in Bombay that a caste custom which permits 
a woman to desert her husband at her pleasure and marry again T\ithout his consent 
is void for immorality (g). And it has been doubted by the same Court whether the 
custom would be valid even if it allowed her to marry with his consent (i). Tlio Madras 
High Court has held that a custom which perm|f9 a divorce by mutual agreement is 
not void for immorality (^). A custom granting divorce in the Pakhah community 
with the consent of the husband is valid ((). 

It has been held in Bombay that a custom which permits a dissolution of the marriage 
tic by either husband or wife against the wish of the other, the sole condition attached 
being the payment of a sum of money fixed by the caste, is void as being opposed to 
public policy (ii)- Nor can a marriage be dissolved by a decision of the caste Panch 

The Native Converts' Marriage Dissolution Act, J866. — This Act provides 
for dissolution of a Hindu marriage where one of the parties to the marriage 
his religion for Christianity and the other remains a Hindu. In such a case if 
who remains a Hindu deserts or repudiates the convert for the space of six cont^^^H 
^ months in consequence of the latter’s change of religion, the convert may present a 
petition to the Court praying that the other party may be ordered to live and cohabit 
with the petitioner or that the marriage may be dissolved. If at the hearing of the 
petition the respondent refuses to cohabit with the petitioner, and the Judge is satisfied 
that the ground for such refusal is the petitioner’s change of religion, he shall adjourn 
the case for a year. If at the expiration of such adjournment, the respondent still refuses 

(n) 


Kadomec v. Joteeram (1878) 3 Cal. 305; 
Sankarahiigam v. iSatiiart (1804) 17 Mad. 
479. 

Government of Bombay v. Oanga (1880) 4 
Bom. 330 , Admn. General of Madras v. 
Anandachari (1880) 9 5Iac!. 400; Ram 
Kumari, In the 7Hatlrr of (1801) 18 Cal 
264 ; Subbaraya v. Ramasami (1900) 23 
Mad 171, 177 ; Naraj7i v. TxrloK (1907) 
29 All 4 ; Pnkkxam v Chellnfi Pxllai 
(1923) 4(5 Mad. 830. 75 I C 17, ('24) A.M 
18 [F.B.], Onpal Krishiui Kasandhan v. 

Jaggo (1930) (53 I A. 20 >, .58 All. 397, 
38 TJoin. L. R. 751, 102 I C. 093, Bariarsi 


Das V. Sumat i'rasa I (1930) 58 All 1019, 
164 I.C. 1047, (’30) A.A. 041. 

(;>) Gobar lhan 1’ Jasa'/rt»ioni (ISOl) 18 C il. 252. 
(^) Xarayan v. Laitvg (1878) 2 Bom. 140. 

(r) Khenikor v. Cmmshankar (1873) 10 Bom. 

11 C 3S1. 

(s) Sankarabngam v Snbhnn (1894) 1 7 Mad. 479. 
(() Jua Maqan v Hm Jelhi (1941) Bum. 535, 

195 I.C. 841, (’41) A.B. 208. 

(if) Keshav v. Bai Gandi (1915) 39 Bom. 538, 
29 I.C 952, (’15) A.B 107. 

(r) Emperor v Bax Ganga (1917) 19 Bom. L.R. 
56, 39 r.C. 308, (’16) A.B 97 


S.441 



532 


HINDU LAW. 


Ss. 

44M43 


to cohabit with the petitioner, the Judge shall pass a decree declaring that the marriage 
between the parties has been dissolved. AVhen any such decree has been passed, it shall 
be lawful for the respective parties to marry again as if the prior marriage had been 
dissolved by death, and the issue of any such re-marriage shall be legitimate, any Native 
law to the contrary notwithstanding. 

The Indian Divorce Act, 1869.— This Act provides inter alia for dissolution of marri- 
age, but it applies only to cases where “ the petitioner or respondent professes the 
Christian religion ” (s. 2 of the Act). Sec. 7 of the Act provides that the Court shall act 
and give relief on principles of the English Divorce Courts. There is a conflict of opinion 
whether the Indian Divorce Act, 1869, applies only to monogamous marriages such as a 
Christian marriage or also to polygamous marriage such as a Hindu marriage where one 
of the parties, being the petitioner, changes his religion for Christianity after the marriage. 

A and his wife B, both Hindus, marrj' according to the rites of Hindu law. A and B 
subsequently become Christians. A then apjilies to the Court for the dissolution of the 
marriage on the ground that his wife has, since the solemnization of the marriage, been 
guilty of adultery (s. 10 of the Act). Is A entitled to relief under the Act ? It has been 
held by the Calcutta High Court that he is, the ground of the decision being that A pro- 
fessed the Christian religion at the time of presenting the petition and that fact was 
sufficient to give jurisdiction to the Court, under the Act, though the marriage was a Hindu 
marriage (ir). On the other hand, it has been held by the Jtadras High Court, that 
having regard to s. 7, the Xet apjihes to monogamous marriages only, and that the Court 
has no jurisdiction to entertain A's petition under the Act (x). 

442. Marital duties,— (i) The wife is bound to live with 
her husband and to submit herself to his authority. ^ 
agreement enabling the wife to avoid a marriage or to live 
separate fro m her husb and if he leaves the village in which Tiis 
wife, a nd her parents resfdeTbr if he m arries another wife,_is__ 
void. Such an agreement is against public policy and co ntra ry 
tb^the spHTT^f the Hindu law. An agreement of this kind is 
n(rans\TOfTb'"a ’s'mt'Tbr restitution of conjugal rights by a 
husband against his wife (y). 

(2) The husband is bound to live with his Avife and to 
^maintain her. 

^•/443. Guardianship of wife. — ( 1 ) The h usband is the 
lawful guardian of his minor Avife ( 2 ) and is entitled to require 
her to live with him, hoAvever young she may be, unless there is 
a custom enabling the wife to live Avith her parents until she 
has arrived at puberty (a). 

(2) After the husband’s death, the guardianship of 
the wife, if she is a minor, devolves on the husband’s relations 
in preference to her paternal relations (6). 


(to) Thapita v, Tliapita (1894) 17 Mad. 235 ; 
Oobardfmn v. Jasadauioni (1891) 18 Cal. 
252. 

(x) (1894) 17 Mad. 235, supra ?ce also 
Periyanayakum v. PoUtikanni (1891) 14 
Mad. 382. 


(y) SHaram v. Aheeree (1873) 11 Bern?. !> U. 129 ; 

Tekait v. Basanta (1901) 28 Cal. 751. 

(*) Dhuromdhur, in the matter of (1890) 17 Cal. 
298. 

(a) Arumufja v. Viraraghaia (1901) 24 Mad. 255. 
(fr) Khudiram v. Bonvarilal (1889) 16 Cal. 684. 



RESTITUTION OP CONJUGAL RIGHTS. 


533 


The infancy of the wife is no ground for depriving the husband of his right to 
demand that his wife shall reside in the same house as himself though it might be right 
in the case of a very young girl to require the husband to show that she would be placed 
by him under the immediate care of some female member of his family (c). See the 
Guardians and Wards Act, 1890, sec. 19. 

444. Eestitution of conjugal rights. — (i) Either party to a 
marriage may sue the other for restitution of conjugal rights {d). 
The Court may refuse to pass a decree for restitution of con- 
jugal rights against the wife, if the husband is sufiering from 
a loathsome disease, such as leprosy or syphilis (e), or if he 
kee ps a co ncubine iiythe house, or is guilty of cruelty in a de- 
gree rendering it unsafe for the wife to return to her husband’s 
domimorf (/) , or if h e adopts anot her religion (g). B ut t he mere 
fact of the husba nd marrying a second wife {h), or mere 
infidelity the part of the husband (t), or the fact t hat the 
wife is~armihbr ‘dj ) Ts. 443], is not by itself sufficient to. 
disentTtIe~ Theffiusband from c laiming Restitution of conjugal 
rights. 

(2) In a suit for restitution of conjuga l ri ghts b y a .Hin du 
hus band , tEe husba nd^ is~not necessarily en titled to a decree 
in the_ absence of a plea_of crusty, .by. .the wife. _ Where the 
wife ha^ pleaded that "sFe was des erte(l_or neglected by 
her husband“an<rThat the suit is not bona fide, she .should.__be 
allow^ to lead evidence so that t he C ourt may be in a position 
to judg e wheiEer~ tbe relief sought for by the husband should 
be granted or not7 and if so on what conditions, if any (1). 

In a suit by the husband for restitution of conjugal rights the cause of action arises 
where the husband lives (»n). 

It has been held by the High Court of Calcutta (n), and following it, by the High 
Court of Rangoon (o), that the presumption that the requisite ceremonies have been 
performed [s. 438] applies only to cases involving questions of inheritance so as to avoid 
illegitimacy, and that no such presumption arises in a suit for restitution of, conjugal 
rights. In such a suit, where the validity of the marriage is disputed, the Court must 
find specifically whether the requisite ceremonies were performed. 


(c) Kixteeram \ . &lusammut(Jen(l}t€nee{\9i1h)Z^ 

W . 11. 178 ; iduriiiamonx v. Kuh Kanta 
(1901) 28 Ciil. . Navnitlal v. Purshotam 
(1926) 50 Bora. 268, 94 I.C, 11, ('26) A.B. 
238. 

(d) Tekait v. Basanta (1901) 28 Cal. 751 ; Dadaji 

V. jRuk/nabai (1886) 10 Bom. SOI. 

(•) Bai Premkuiar v. Bhika (1808) 5 Bom. H.C» 
A.C. 209. 

if) Dular Koer v. Bwarka Nath (1905) 34 Cal. 
971 ; Yamunabai v. Narayan (1876) 
1 Bom. 164. 

((7) Paigi v. Sktonarain (1880) 8 All. 78. 


(ft) Motilal V. Bai Chanchal (1902) 4 Bom. L.K 
107. 

(i) Binda v. SatmsUia (1891) 13 All, 126, 164 

(j) (1001) 28 Cal. 37, supra ; (1886) 10 Bom. 

301. supra. 

(ft) Vde Singh v, Daulat Raur (1935) 16 
Lah, 892, 158 I.C. 223, (’35) A.L, 386. 

(i) Bax Jivi v. Narsingh (1927) 51 Bom. 320 
101 I.C. 403, (’27) A.B. 264. 

(m) Vsnugopal R^aidu v. LaKshmi Ammal (1936) 
59 Mad. 392, 161 I.C. 485, (’36) A.M. 288. 
(ft) Suriyamani v'. Ralikanta (1901) 28 Cal. 37. 
50. 

(o) Bampjyar v. Deva Rama (1923) 1 Bang. 129, 
76 I.C. 475, (’23) A. R. 202. 


Ss. 

443,444 



Ss. 

445,446 


634 


CHAPTER XXIII. 

ADOPTION 

1. “ There is no heavenly region for a sonless man.” — Vasiatha. 

2. “ He whom his father and mother give to another as his son, provided that 
the donee have no issue, if the boy be of the same class, and affectionately disposed 
is considered as a son given, the gift being confirmed by pounng water.” — Manu, 

3. “A eon formed of seminal fluids and of blood proceeds from his father and mother 
as an effect from its cause. Both parents have power to give, sell or disown him. But 
let no man give or accept an only son, since he must remain to raise up a progeny for the 
obsequies of ancestors. Nor let a woman give or accept a son, unless with the assent of 
her lord. He who means to adopt a son must assemble his kinsmen, give humble notice 
to the king, and then having made an oblation to fire with words from the Veda, in the 
midst of his dwelling-house, he may receive as his son by adoption, a boy nearly allied to 
him, or (on failure of such) even one remotely allied. But if doubt arise (as to his caste), 
let him treat the remote kinsman as a Sudra. The class ought to be known, for through 
one son the adopter rescues many ancestors. H after he has been adopted, a legitimate 
son be bom, then the adopted son shall be participator of a fourth share.” — Vcuiatha. 

Note . — The texts prohibiting the adoption of an only son, and those directing the 
adoption of a near relative, have been held to be merely recommendatory, and not man- 
datory. Therefo re neither the adoption of an only son no r the adoption of a strang er, 
though there be near relations, is invalid. 


Costents. 

1. Who may adopt — aeca. 449-473. 

2. Who may give in adoption — aeca. 

474-479A. 

3. Who maybe adopted — aeca. 480-487. 

4. Ceremoniea relating to adoption — 

aeca. 488-493. 

o. ReauUs of adoption — aeca. 494-500. 


6. Deveating of eatate on adoption — 

aeca. 501-50G. 

7. Alienations made prior to adop- 

tion — sees. 507-509. 

8. Effects of invalid adoption — aeca. 

510-511. 

9. Mode of proof and estoppel — secs. 

512-514. 

10. Kritrima adoption — sec. 515. 


445. Adoption in other systems of law. — Adoption is not 
recognized by the Mahomedan law {])), nor is it recognized 
by the English or the Parsi law. It is recognized by the Hindu: 
law, but even in that system of law there may be a family {q) 
or caste (r) custom prohibiting adoption, and if such custom is 
proved, effect will be given to it by the Courts. 


446. Different forms of adoption. — The ancient Hin.^ 
law recognized f ive kinds of adopted sons. The modern 
Hindu law recognizes only two, namely, the tiaUaM and the 
hritrima. The dattaka form is in use all over India. The 
kritrima form is prevalent in Mithila and the adjoining districts. 


(p) Muhammad AUahadnd v, Muhamdad linuixi 

(1888) 10 All. 239, 340. 

(q) Fanindra v, Bajes7ju'ar(1885) 11 Cal. 463, 12 


I.A 72. 

(f) Verabhax v. Bai Uirala (1903) 27 Bom. 
492, 30 I.A. 234. 



ADOPTION. 


535 


Ss. 

m-m 


447. Object of adoption. — The objects of adoption are 
twofold ; the first is religious, to secure spiritual benefit to 
the adopter and his ancestors by having a son for the pur- 
pose of offering funeral cakes and libations of water to the 
manes of the adopter and his ancestors. The second is secular, 
to secure an heir and perpetuate the adopter’s name (s). 

When a Hindu gWea a boy in adoption, his act is, according to the Hindu Shastras, in 
the nature of a aacred gift voluntarily made. It is on that account that Manu requires 
the gift to be confirmed by pouring water.’" A daughter given in marriage, which is 
called IcanyadaUi and a son given in adoption, which is called putradan^ stand in this 
-respect on the same footing. Both are gifts for religious and secular purposes (i). 

448. Requirements of a valid adoption. — No adoption is 
valid unless — 

(1) the person adopting i s lawfully capable of taking i n 
adoption [secs. 449-473] ; 

(2) the person giving in adoption is lawfully capable o f 
giving in adoption [secs. 474-479] ; 

(3) the person adopted is lawfully capable of being taken 
in adoption "[secsT' 480-487] ; 

(4) the adoption is completed by an actual giving and 
t aking [sec. 489] ; and 

(5) the ceremony called datta homam (oblation to fire) 
has been performed! It is^ however, doubtful 
whether the datta homam ceremony is essential 
in all cases to the validity of an adoption [sec. 490]. 

I. PERSONS WHO MAY LAWFULLY TAKE IN ADOPTION. 

449. Who may adopt. — Every male may adopt provided 
he is otherwise competent to do so [sec. 450]. A wife also 
can adopt to her husband, but no other female can adopt to any 
other male ; thus a mother cannot adopt to her son, nor a sister 
to her brother. A wife cannot adopt during her' husband’s 
lifetime except with his express consent (m). After his death, 

. {$) Sitaram v. Harihar (1911) 35 Bom. 169, 179, 

180, 8 l.C. 625 ; Bal Gangadhar Tilak v. 

Shrimvas (1915) I. A. 135, 154, 39 Bom. 

441, 470, 29 l.C. 639, ('IB) A.PC. 7. 




(m) Narayan v. Nana (1870) 7 Bom. H.C.A. 
C, 153 


The ancient Hindu law recognized twelve kinds of sons, of whom five were adopted 
.sons. Of these twelve only three are now recognized, namely, aurasa or legitimate son, 
daitaka or son given in adoption, and hritrima or son made. The whole of this chapter 
deals with daitaka adoption except sec. 515 which deals with hritrima adoption. 



536 


HINDU LAW. 


she may adopt, in certain parts of British India, only if he has 
expressly authorized her to adopt, and in other parts of British 
India, even without such authority [sec. 452], But in no case can 
a wife or a widow adopt a son to herself ; the adoption must he 
made to her husband. An adoption by a woman of a s on to_ 
^ersel/ Js i nval id and it co nfers no legal rights up^ the per^qa_ 
adopt eHT^). 

It will be seen from the above that a Hindu may either himself adopt, or delegate 
the power to adopt to hia wife. But he cannot delegate the power to any other person. 
As to Kritrima adoption, see sec. 515. 

450. Adoption by male. — (2) Subject to the provision of 
any law for the time being in force, every male Hindu, who is 
of sound min d (u'), and has attained the age of discretion, even 
though he may be a minor {x), may lawfully take a son in 
adoption, provided he has no son, grandson, or great-grandson 
natural or adopted (^), living at the time of adoption. 

The High Court of Bombay has held that a Hindu, who 
has a son, grandson or great-grandson living at the time, 
cannot adopt even if the son, grandson or great-grandson, 
is disqualified from inheriting on any of the gromads mentioned 
in section 98 (2) above ( 2 ), e.g. if he is a congenital idiot (a). 
The High Court of Madras has dissented from that view and held 
that he can adopt (6). Even according to the Madras view, 
such an adoption would, since the Hindu Inheritance (Removal 
of disabilities) Act, 1928, be invalid, unless the son, grandson, 
or great-grandson was a lunatic or idiot from birth. See 
sec. 98 (2). 

(2) The fact that the adopter is a bachelor (c), or a 
widower (d) or that his wife does not consent to the 
adoption (e), or that she is at the time of adoption pregnant 
to his knowle dge (/), does not prevent him from taking a son 
in adoption. 


(v) Choadri/ Pudum SiiKjk w Kocr Oddey Singh 
(1869) 12 M.I.A. 350, 356; j^’nrendra v. 
Dina XaUi (1909) 36 Cal. 824, 3 I C 990. 
(k) Tayu nimaul v, SnshachaUa (1865) 10 M.f A. 
429, pp 434-35; Sehhnmma v J*aduinnabha 
Hao (1917) 40 Mad. 660, 33 I C. 578 (’17) 
A.M. 265. 

(a:) Jlajendro Sarain v Saroda (1871) 15 ‘W.U. 
548 ; Jumoona Dassya v. JiatM Soondan 
(1876) 1 Cal. 289, pp. 295-90, 3 I.A. 72. pp 
83-84, Patel Vandravun v. Patel Manilal 
(1891)15 J5om. 565 , Sattiraja v Venkata- 
sivami (1917) 40 Mad. 925, 928-20, 40 I C. 
518, (’18) A.M. 1072 ; KaMnalh Bala- 
krishna v, Anant Murhdhnr (1942) Horn 
782, 203 I.C. 352, (’42) A.B. 284. 


I (y) Gopee Lai v. Chiindraolee (1872) I.A. Sup. 
I Vol. 131. 

i ( 2 ) Bharmuppa v. TJjjangauda (1922) 46 Bom. 
' 455, 05 I.C. 210, (’22) A.B. 173. 

(«) Krishnajx Ilanmnnl v. Raghavendra Keshav 
(1942) Bom. 486, 201 I.C. 401, (’42) A.B. 
178. 

(//) i^ayaiavinl v. Sanknmppa (1931) 54 Mad. 

576, 131 I.C. 9, (’31) A M. 264.' 

(c) (iopal V. iS'arayan (1888) 12 Bom. 329. 

(rf) Chandrasekharndu v. Bramhanna (1869) 4 
Mftd. H.C 270. 

(e) Bimtjama v, Atvhama (1840) 4 M T.A. 1. 

(/) Naijabhushannm v. SeJshammagarn (1881) 3 
Mad. 180 , Daxilal Rain v. Ram Lai (1007) 
29 .\ll. 310 ; llanmani v. Dhimacharya 
(1888) 12 Bom. 105. 



ADOPTION BY WIDOW. 


537 


llluairaliona. 

(a) A, who has an adopted son B, adopts C. The adoption is not valid, for a Hindu 
cannot have two adopted sons at the same time (g). 

(b) A has a grandson B, who is dumb, the dumbness being congenital and incurable. 
A cannot be said to be sonless so as to make an adoption by him in the lifetime of B 
valid (h). 

(c) A has a son B who is an outcast. Can A take another son in adoption ? Accord- 
ing to the pure Hindu law A can adopt, for B, being an outcast, cannot perform obsequial 
rites and is not entitled to inherit to him. But it is a question whether since the passing 
of Act 21 of 1850, the Courts would recognize the adoption, for having regard to the 
provisions of that Act, B would still be entitled to inherit to A, though he might be an 
outcast. The remarks which apply to an outcast apply also to one who has renounced 
the Hindu religion. 

Minor . — Under the Indian Majority Act, 1876, minority extends to the end of the 
eighteenth year, except in eases where a guardian has been appointed by a Court of 
.lustice, or where the minor is under the jurisdiction of the Court of Wards, in which cases 
it lasts till the end of the twenty-first year. The Indian Majority Act, 1875, does not 
apply to Hindus in matters of adoption. Therefore, even a minor may adopt or autho- 
rise his widow to adopt, provided he has attained the age of discretion, that is, has 
completed the age of fifteen years (i). 

Consent of Court of Wards . — There are local Acts which constitute Courts of Wards. 
These Acts contain provisions prohibiting a ward of the Court from adopting without 
the consent of the Court. 


Ss. 

450^2 


Illegitimate son . — The existence of an illegitimate son is no bar to an adoption (j). 
Illatom adoption . — See the under- mentioned case (4). 


451, Adoption by wife. — A wife cannot adopt a son 
to her husband during her h usband’s lifetime except with his 
exprgss co nseiiFTI h 

The case of an adoption by a wife during her husband’s lifetime is very rare. 

452. Adoption by widow. — The law as to adoption by a 
w'ldow is d ifferent in different provinces (m) : — 

(1) In Mithila a widow cannot adopt at all, not even if 
sh e has the express authority of Tier hii^ and^ ^ 

(2) In Bengal, Benares (n) and Madras a widow may 
adopt under an authority from her husband in that behalf. 


(g) (1840) 4 M.I.A, 1, supra ; ^tohe8h v. Tamck 
(1893) 20 Cal. 487, 20 I.A. 30. 

(fi) Bharmappa v. Ujjanqauda (1922) 40 Bom. 

455, 05 I.C. 210, (’22) A.B. 173. 

(t) SaMuflju V. Venlatasuami (1917) 40 Mad. 
925, 928-29, 931-33, 40 I.C. 518, (’18) A.M. 
1072. 

<j) Maharaja of Kolhapur v. S«ndaram (1925) 48 
Mad. 1, 93 I.C, 705, (‘25) A.M. 497. 


(j1*) yalluri v. Kamepalli (1919) 46 I. A. 168, 
42 Mad. 805, 51 I.C. 1, (’19) A.PC. 102. 
(/) Nurayan v. Naiia (1870) 7 B. H. C. A, C. 
263. 

(m) Collector of ^fadu^a y Mootoo Bainalinga 

(1868) 12 M.I.A. 397, 435-30. 

(n) Babxc Motising v. Durgabai (1929) 53 Bom. 

242, 114 I.C. 379, (’29) A.B. 57. 



638 


HINDU LAW. 


S.452 


Such, authority may be express or implied. It cannot be 
implied from the mere absence of a prohibition to adopt (o). 

(3) Iir the Madras Presidency a widow may also adopt 
without her husband’s authority, if where the husband was 
separate at the time of his death, she obtains the consent 
of his sapindas, and where he was joint, she obtains the consent 
of his undivided coparceners. This subject is considered 
more fully in sec. 462 below. 

(4) In the Bombay Presidency, a widow may adopt 
even without any authority. See sec. 463 below. 

Among the Jains of the Bombay Presidency who migrated 
from Jodhpur a Jain widow can adopt without the authority 
of her husband (;p). 

Among the Baghubansi Rajputs who immigrated from 
Ayodhya to Chindwara a Avidow may adopt vdthout authority 
of her husband (g). 


The difference of opinion between the various schools of Hindu law noted above 
arises from different interpretations put upon a text of Vasistha, which says ; — “ Nor 
let a woman give or accept a son, unless with the assent of her lord.” All the schools 
accept the above text as authoritative, but the Mithila school takes it to mean that the 
assent of the husband must be given at the titne of the adoption, and, therefore, a widow 
cannot adopt at all. The Benares and Bengal schools interpret the text as requiring 
an express permission given by the husband in his lifetime, but capable of taking effect 
after his death. Tiie Bombay school explains the text away by saying that it appHes 
only to an adoption made in the hu.sband’s lifetime, and is not to be taken to restrict the 
widow s power to do tiiafc which the general law prescribes as beneficial to her husband's 
soul. According to this school the assent of the husband is presumed, so that a widow 
may adopt even to her deceased minor husband (r)y- The law in Madras stands interme- 
diate between the law in Bengal and the law in Bonibay. According to the Dravida 
(Madras) school, the word “ husband ”, or ” lord ” in the above text is merely illus- 
trative, and means tlie guardians of the widow for the time being, so that the assent 
of the husband s sapindas who are the widow’s guardians after her husband’s death is 
sufficient to enable her to adopt ; but she cannot adopt without their assent even if ho 
was separate at the time of his death. 


AdoptioJi by Jam widow , — -A Jain widow cannot adopt a son to her husband without 
the authority of her husband or the consent of his sapindas [s), in thte absence of proof of 
a custom to the contrary (0. 


(o) Dalahubramanya Pandiia Thalaiiar v. Sub- 
bayya Thei ar (lOSS) 03 1.A. 93, (1038) ilad 
551, 40 Bom. L.R, 704, 72 I.C. 724. (*38) 
A.PC. 34. * \ / 


(/>) Suyanchand Bhikanchand y Manjibhat 
O'lJaUhand (1942) Bom. 467, 201 1.C. 759, 
(’42) A.B, 185; Yamashetti Bhaushelti 
V. As/iok Bhausfietli (1940) Boro. 819. 191 
I.C. 488, ('40) A.B. 391. 

(9) Mst. Kresarbai v. [nde Singh (1945) Nag, 1, 


71 I.A. 100. 

(f) Putel Vandravan v. Patel Manilal (1891) 15 
Bom. 505. 

(«) P$ria Ammani v. Krishnasami (1893) 10 
Mad. 182 ; Geltappa v. Erarnma (1927) 50 
Mad. 22B, 97 I.C. 503, (’27) A.M. 228. 

[t) LakhmiChaixd v. Gago Bai (1880) 8 All. 319 ; 
ManohaT Lai v. Banarsi Das (1907) 29 
All. 495; Asharh K^nwar v. Rup Chand 
(1908) 30 All. 197; Ramabh Pershad v. 
Mandil Bass (1900) 27 Cal. 379. 



ADOPTION BY WIDOW. 


539 


ADOPTION BY WIDOW UNDER EXPRESS AUTHORITY 
FROM HER HUSBAND. 

453. Who may give authority to adopt. — Every Hindu of 
sound mind who has attained the age of discretion may autho- 
rize his wife (except in Mithila) to adopt a son to him after 
his death, even if he has not attained the age of majority [u). 

The authority to adopt may be given by the husband, even if he -was a member of 
a Mitakshara joint family at the time of his death («)■ Thus if A and B are members 
of a Mitakshara joint family, either of them may authorize his wife to adopt a son to 
him after his death. As to adoption by a minor, see notes to s. 450 above. 

454. Authority to widow to adopt. — (i) Authority can he 
given to widow alone. — The authority to adopt can be given 
to the widow alone, and not to any other person, nor can it 
he given to the widow conjointly with another (tv). 

(2) Joint authority to loidow and another. — Where the 
authority to adopt is given to the widow conjointly with another 
person, the authority is void and an adoption made in 
pursuance of such authority is invalid {x). 


{3) Authority to widow to adopt loith consent of a specified 
person. — But though a Hindu cannot join any other person 
with his wife in making an adoption, he may direct his wife to 
adopt with the consent of a specified person, or he may direct 
her not to adopt without the consent of a specified person. 
Where the direction is to adopt with the consent of a specified 
person, and it appears from the context and surrounding 
circumstances that the consent was to he a condition precedent, 
as where the wife is very young and the paramount- intention 
shown by the document givhig authority to adopt is not to 
obtain the spiritual benefits arising from the adoption but 
to have a son to inherit, an adoption made without the consent 
.of the person named is invalid, whether such person be aHve 
or dead at the time of adoption [y). Where the boy to be 
adopted was to be chosen by four executors and one of the 
executors selected the boy after consulting the co-executors 
who did not express their disapproval either before or at the 


(u) Patel Vandraian v. Patel Manilal (1801) 
15 Both, 566, 

(») See Bachoo v. Ma7i\orebai (1007) 31 Bom. 
373, 34 I.A, 107. 

(u) Anirito Laly. Stirnomoye (1900) 27 Cal. 996, 
27 I.A. 128 ; Bhagtandas v. Rajmal 
(1873) 10 Bom. H.C. 241 [Jainsj. 

(x) Anmlo Lalv. ^wmoweyeClflOO) 27 Cal. 996, 


27 I.A. 128. 

(y) Rajendra Prasad v. Gojtal Prasad (1930) 
57 I.A 296, 10 Pat. 187, 127 I.C. 743, 
('30) A.PC. 242, reversmtr a.r, m (1928) 
7 Pat. 245, 108 I C. 545, ('29) A.P. 51 . 
Radha Mahadeb Jio v. Rajendra Prasad 
Bo«€( 19S3) 12 Pat. 727, 149 I.C. 809, (’33) 
A.P. 250. 


Ss. 

453,454 



540 


HINDU LAW. 


Ss. time of adoption, the adoption was held to be valid (z). Where 
454, 455 direction is that she should not adopt without the consent 
of a specified person, an adoption made without such consent 
is invahd in every case whether such person be a.V>'se or dead 
at the time of adoption (a). But where she is merely directed 
to consult a specified person, she is not bound to do so, and she 
may adopt without consulting such person (6). 

Ilhtslralions. 

(a) A by hia will authorizes his wife and his executors to adopt a son to him. If 
an adoption is made in pursuance of such authority by A’s widow and hia executors, 
the adoption ia invalid. The adoption will also be invalid, even if it is made by the 
widow alone, for the authority to adopt is not given to her singly, but to her conjointly 
with others. 

(b) A Hindu by his will appoints five persons as executors and trustees, and 
authorizes his widow to make an adoption with the consent of those persons. Four of 
the trustees prov'e the will and undertake the trust, but the fifth declines to do so. An 
adoption by the widow with the consent of the four who prove the will is valid : Bal 
Oangadhar Tilah v. Shrinivas (1915) 42 I.A. 135, 39 Bom. 441, 29 1.C. 639, (' 15) A. PC- 7. 

455. Authority to co-widows. — (i) Where there are two or 
more Avidows, and the authority to adopt is given to one of 
them only, she may adopt without consulting the other widows, 
and she alone, it seems, can adopt (c). 

(2) In Narshnha v. Parthasarathi {d) a case from Madras, 
their Lordships of the Privy Council left it an open question, 
ivhether if a power to adopt were given to two or more widows 
jointly, such power would be valid, but they held that even if it 
were so, it must be exercised by them all and that it could not be 
exercised after the death of any one of them.i^ In that case their 
Lordships observed that such a power might be supported by 
custom, and that there were indications in the cases cited before 
them that in some parts of India such a power might perhaps 
be interpreted as giving a preferential right of adoption to the 
senior widow. It has since been held by the High Court of 
iMadras that where a joint power of adoption is given to two 
widows, an adoption made by them jointly is not invalid, though 
the son adopted would in law be the son only of the senior 

(z) Rattanlal v. Baijnath (1939) Lah. 1 (r.C.), Suri/anarauana v. VenJeataf mana (1900) 

169 I.C. 002, ('37) A.VC. 292. 29 Mad. 382, 33 I.A. 143. 

(a) Jianjuiaiv DAajiraIAi()0?(1878)2Bom, 377 (c) Strange's Hladu Law vol U. 91 • Mnyne's 

(1900) 27 Cal. 996, 1002, 27 I.A 128. 132, Hindu Law, 118. v 

134, supra ; Bal Gomaihar Trlak v. (i) (1914) 37 Mad. 199, 220-221, 41 I.A. 51, 
Shrinivas (1915) 42 I.A. 135, 39 Bom. 69-70,23 1.0.160; Lachmi v. Musammut 

441 , 29 I C. 639, ('15) A.BC. 7. Parbati (1920) 42 All. 260, 54 I.C. 910, (’20) 

(6) Surendra Xandan v. Sailajr (1891) 18 Cal. A. A. 160. See also Saraia Proaad v. Rama 

385, cited with approval in KannepalU Pair (1912) 17 C.W.N. 'J19, 16 I.C. 817, 



ADOPTION BY WIDOW. 


541 


widow who alone has the preferential right to adopt, the junior 
widow being considered only as his step-mother. The decision 
proceeds on what is called “ the genius of the Hindu law ” 
and “ the custom and consciousness of the community at large 
at any rate jji South India ” (e). Where a deed conferred on 
both the widows authority to adopt and further provided that 
if any one was not willing to adopt, the other may do so, it was 
held that the authority was valid (/). 

{3) Where the authority to adopt is given to the widows 
severally, the senior widow has the prior right to exercise the 
power ofcidoption. The junior widow has no right to adopt 
unless the senior widow refuses to do so (g). A widow cannot 
adopt when her co-widow has validly adopted and the adopted 
son is living (h). See secs. 462 (S), 463 (4), and 470. 

Illuatralion. 

A Hindu testator, having two wives, directed by his will as follows : — “ You ” 
(meaning hi.s two wives) “ should adopt a boy who is our sonnihita whenever it strikes 
you that our Samastanam should continue. In all matters both should act without 
quarrelling." Both wives survived the testator. After the death of one of the widows 
the other adopted a son to the testator. Held by the Privy Council that the power to 
adopt was joint, and that it could not be validly exereised by one widow after the death 
of the other, and that the adoption was therefore invalid : Xarasimha v. Parthaaarathy 
(1914) 37 Mad. 199, 41 I.A. 51, 29 l.C. 168. 

456. Form of authority .^ — {!) The authority to adopt may 
be given verbally or in UTiting. If it is in writing, it must be 
registered, unless the authority is given under a will (i). 

(2) If the authority is contained in a will, the will must 
be executed in accordance with the formalities required by 
the Indian Succession Act, 1925, s. 63. 

{3) Minor's will . — If an authority to adopt is given 
by a minor by a writing purporting to be a will, the docu- 
ment must be registered. The reason is that a minor. cannot 
make a will (j), and the writmg can only be treated as non- 
testamentary, in which case it must be registered as required 
by law (k). 


(«) Tiruvengalam v. Butchayya (1929) 52 Mad. 
373, 113 l.C. 347, (’29) A.M. 11. 

{/) Rajarai. v.Joli Prasad (1943) All. 747, 209 
l.C. 139, (’43) A.A. 319. 

(?) Bijoyy.i. anji«(1911) 38 Cal. 694, 12 l.C. 460; 
Mondakini Dasx v. Adinath Dey (1891) 18 
Cal. 69 ; Ranjxt Lai v. Bijoy Krishna (1912) 
39 Cal. 582, 14 l.C. 17. 

(A) Shivappa liudrappa v. Z2»drara CAati&a* 


sappa (1033)' 57 Bom. 1, 142 l.C. 164, 
(*32) A.B. 410. 

(i) MutsaJdi Lai v. Kuyidari Lai (1900) 28 All, 

377, 33 I.A. 55. Registration Act, 1908, 
s 17{Z).Sbq Ilaivatv. Be^ii Bahadur (1926) 
1 Luck. 403, 93 l.C. 567, (’20) A PC. 97. 

(j) Indian Succession Act, 1925, s. 59. 

(ft) rijfiyawinam v. ^i/darsana (1925) 48 Mad. 
614, 52 I A. 305, 89 I (’. 733, (’25) 
A.PC. 190, 


Ss. 

455,456 



642 


HINDU LAW. 


Ss. 

457, 458 


457. Conditional authority. — The authority to adopt may 
be conditional, but the condition must not be illegal. An 
authority to adopt in the event of a disagreement between 
the widow and the natural born son, even if the son should then 
be living, is invalid (1 ) ; the reason is that a Hindu caimot adopt 
while he has a son living [s. 450]. But an authority to adopt 
in the event of the natural born son dying under age and 
unmarried is valid (w). 


458. Authority must be strictly followed. — The authority 
to adopt must be strictly obeyed {n). The duty of the widow 
is to obey such directions as her husband may have 
given as to the way in which she should exercise the power 
of adoption to him (o) or as to the boy to be adopted (p). 
Where the husband directed that the widow should adopt a 
boy from his family or of his gotra the adoption of any other 
boy is invalid (q). Thus where the authority to the widow 
is to adopt within a specified period, she cannot adopt after the 
expiration of that period (r). Similarly where the widow is 
authorized by her husband to adopt, “if no male or female 
child should be born to him,” §he cannot adopt if a daughter 
is born to him, although she may be born after his death (s). 
It has been held by the High Court of Bombay that wdiere the 
widow is authorized by her husband to adopt a boy named by 
him, and she adopts the boy, she is not precluded from adopting 
another boy after the death of the adopted boy, unless there is a 
direction prohibiting her from adopting any other boy. Such a 
direction to operate as a prohibition against the widow adopt- 
ing any boy, except the boy named by him, must be exphcitly 
made and clearly intended by the husband to limit the discre- 
tion of the widow for all time, and on every occasion on which 
otherwise after his death his widow might validly make an 
adoption to him (t). 


(/) Solukhna v liamdolal (1811) 1 Beng. S.D. 
324 (2nd ed.. 434). 

On) Jlaja Vellankt v. Venkata (1876) 1 ilad. 
174, 41 A. 1. 

(n) Choicdhry Pudum >:>ingh v. Jioer Oddey 

Singh (1869) 12 M.I.A. 350, 356; 

2 Beng. L.E. (P.C.) 101, 12 IV.R. (P.C.) 
1 ; Sarendrakeshaix . i)oor3«sundori(1892) 
19 I.A. 108, 122, 19 Cal. 513; Uajendra 
Prasad v. Gopal Pramd (1930) 57 I.A. 
296. 303, 10 Pat. 187, 196, 127 I C. 743. 
('30) A. PC. 242. 

(o) SUabai v Bapu (1020) 47 I.A. 202, 205, 47 

Cal 1012, 1018, 57 I.C. 1, (’21) A.PC. 
8 : Yadao v. yamdeo (1921) 48 I.A. 513, 
522, 49 Cal. 1, 12, 04 I C. 538, (’22) A. 


PC. 216. Sec liaUndra Prasad v. Gopal 
Prasad (1928) 7 Pat. 245, 108 I.C. 545, 
(’29) A P. 51. 

(p) Jiahiitth Devi v. V^iaran Prakash (1933) 55 
All. 78, CO I A. 90, 142 I.C. 1, (’33) 
A.PC. 71. 

(j) Sundara Siiudu v. Adinarayana (1940) Mad. 

233. 189 I.C. 303, (’39) A.M 009. 

(r) ^IiUsaddi Lai v. Kundan Lai (1906) 28 All. 
377, 33 I A. 55. 

(«) Bhagival Koer v. Dhanukhdharx (1019) 46 
I A. 259, 47 Cal. 466, 53 I.C. 347, (*19) A. 
PC. 75. 

(0 Yadao V. yamdeo (1921) 48 I.A. 513, 49 Cal. 
1, 64 I.C. 636, (’22) A.PC. 216 , Lakshmi- 
&ai V. jRaja^i (1898) 22 Bom 096. 



BEVOCATION OF POWER TO ADOPT. 


543 


Illuatralions. 

(a) A authorised his wife, who was then pregnant, to adopt, in case “ the son that 
might be born ” dies. A dies, and after his death the widow is delivered of a daughter. 
The authority to adopt cannot be validly exercised (u). 

(b) A authorizes his widow to adopt “ one of the sons ” of B. The authority to 
adopt will be deemed to have been strictly pursued if any one of JS’s sons is adopted, 
whether he was in existence at the date of the authority or was born thereafter. Such an 
authority does not limit the widow’s choice to a son of B who was in existence at the 
date of the authority ; Mutsaddi Lai v. Kundan Loll (1906) 28 Ail. 377, 33 I. A. 55. 

(o) A directs by his will that his widow IV should “ so far as possible adopt S, the 
second eon of my elder brother : it he cannot be obtained, any other boy should be 
adopted with the advice of the trustees.” In consequence of ill-feelings arising between 
W and iS and his family, W adopts, with the consent of the tru-stees, her sister's son. 
The adoption is invalid. The words, “ so far as possible,” mean that unless there 
are conditions outside the will preventing the possibility of the adoption, the widow 
when she does adopt, is to exercise her power in favour of S. The boy could be obtained 
and mere ill-feeling between W and S and his family could not justify W in disobeying 
the mandatory directions of her husband ; Sitabai v. Bapu (1920) 47 I. A. 202, 47 Cal- 
1012, 57 I.C, 1, (’21) A.PC. 8. 


Ss. 

458-460 


459. Exercise of authority to adopt discretionary : no limit 
of time. — A widow who is authorised by her husband to 
adopt may or may not adopt, at her discretion. She is imder 
no legal obligation to adopt, even if she has been expressly . 
directed by her husband to do so. Her rights to the husband’^^ 
estate are not in any way affected by her omission or refusal 
to adopt (v). Nor is there any limit to the time during which 
she may act upon the authority given to her [s. 471 (4)^ See, 
however, secs. 471-472. 


460. Kevocation of power to adopt. — (i) An authority to 
adopt may be revoked either expressly or impliedly. 

(2) If the authority is contained in a will to which the 
provisions of the Indian Succession Act, 1925, apply, it can 
only be revoked in the manner provided by sec. 70 of that Act. 

Illiialration. 

A Hindu disposes of his ancestral property by a will made in 1889. At the date 
of the will he was the sole surviving coparcener with regard to that property, and as 
such entitled to dispose of the property by will [a. 255]. The will contains an authority 
to the widow to adopt V if he did not adopt him in his lifetime, and, in the event of 
F’s death in the wife’s lifetime, to adopt P. The testator adopts V in 1890, the legal 
result of which is that he admits F as a coparcener in the family. He then makes another 
will which contains a disposition of property inconsistent with the first will but contains 

(u) J^tohtndrololl v. Rookiney Dabee (1864) 1 j (1888) 12 Bom. 202, Uvia Sundan v. 

Coryton 42. | Sourobuiee (1881) 7 Cal. 288 ; Narayan 

(f) Mutsaddx Lai V. Kundan Lai (IQQQ) 2.8 aw. Ayyangar v. Venguammal (1938) Mad. 

377, 33 1.A. 55 ; iVmjnai’aAoo V Dnarkadas \ 021. 



544 


HINDU LAW. 


Ss. no express revocation of the earlier will nor of the authority to adopt therein contained. 

460-462 The testator dies leaving his widow and V. V dies next without issue. After T’s death 

the widow adopts P. The adoption of P is valid, for though tho second will is invalid 
in ao far as it purports to dispose of the coparcenary property [the testator not then 
being the sole coparcener], it does not revoke the authority to adopt contained in tho first 
will: V tnlcatanarayana v. Subbammal (1916) 43 I. A. 20, 39 Mad. 107, 32 I.C. 373, 
(’151 A. PC. 37. 

Note . — As to the termination of a widow’s pow'er to adopt, even under the authority 
of her husband, see secs. 471 and 472. 

Having noted the peculiar features of an adoption by a widow under an express 
authority from her husband, we proceed to deal with adoption by a widow without such 
authority. This is possible only in the Madras and Bombay Presidencies. 

ADOPTIO::^ BY ^YJDOW \YITHOVT HVSBAND'S AUTHORITY. V 

461. Adoption by widow without husband’s authority. — ^The 
only parts of British India where a widow may adopt without 
an express authority, from her husband are the Madras and 
Bombay Presidencies. 

462. In Madras. — In the Madras Presidency, a widow 
may adopt without authority from her husband, subject to 
the following conditions [s. 452 (5)] 

(1) She caimot adopt, if there is an express or implied 
prohibition from her husband. A prohibition ought not to be 
inferred from the mere fact that the husband and wife were 
living separate (iv). See sec. 463 (1). 

(2) If the husband was separated at the time of his death, 
she must obtain the consent of her father-in-law, and his 
consent as the head of the family is sufficient. If the father- 
in-law is then dead, she must obtain the consent of her 
husband’s sapindas, but need not obtain the consent of the 
daughter’s son [x). But the consent necessary to validate 
the adoption is not the consent of every sapinda, however 
remote {y). The comsent required is that of a substantial 
majority of the nearest .sapindas who are capable of forming 
an intelligent and honest judgment in the matter (z). For 
instance, where the consent of the nearest divided Sapindas 
was sought on the ground that the only undivided sapinda was 

(UJ) Collector of Madura v MooUoo Ramahnga (1868) 12 M.I.A. 307 ; V iswasundara v. 

(1868) 12 M I. A. 397 [knowu as the So^naiundra. (1020) 43 Mad. 870, 59 I.C. 

Ramnad case], Muthugami v. Pulata- 609, ('20) A. M. 451 [consent of daughter’s 

ratal {1^22) 45 Mad. 266, 66 I C. 504, son not necessary]. 

('22) A M. 106. (*) Adugumilli v. Adut,umiUi (1020) 47 I-A, 

(z) SeshamvuL v Saras^mharao (1940) Mad. 99, 43 Mad. 650, 56 I.C. 301, ('20) A.PC. 

454, 188 I.C 250, (’40) A M. 336. 4 ; V enkatakrishnamma v, Annapurnamma 

(y) ColUctor of Madura v. Moottoo Ramalinga (1000) 23 Mad. 480. 



ADOPTION BY WIDOW. 


545 


insane and some of them refused to consent alleging that he 
was sane, while he was really insane, it was held that their 
refuel may he ignored {a). Where the nearest Sapindas have 
capriciously withheld their consent, all that is necessary is a 
preponderance of opinion among the reversioners in favour of 
the adoption. There need be no family council in the order of 
the degree of relationship nor is it necessary that ail of them 
should be consulted. The widow need not consult her step- 
daughter (b). The absence of consent on the part of the nearest 
sapindas cannot be made good by the authorization of distant 
relatives whose assent is more likely to be influenced by im- 
proper motives (c). This does not mean that the consent of a 
near sapinda who is incapable of forming a judgment on the 
matter, such as a minor or lunatic, is either sufficient or neces- 
sary ; nor does it exclude the view that, where a near relative 
is clearly proved to be actuated by corrupt or malicious motives, 
his dissent may be disregarded. Nor does it contemplate cases 
where the nearest sapinda happens to be in a distant country 
and it is impossible without great difficulty to obtain his consent, 
or where he is a convict or suffering a term of imprisonment. Save 
in exceptional cases such as those mentioned above, the consent 
of the nearest sapindas must be asked (d), and if it is not asked^ 
it is no excuse to say that they would certainly have refused (e). 
In short, there should be such proof of assent on the part of the 
sapindas a.s should be sufficient to support the inference that the 
adoption was made by the widow, not from capricious or 
corrupt motives or in order to defeat the interest of this or that 
sapinda, but upon a fair consideration by what may be called- 
a family council, of the ^pediency of substituting an heir by 
adoption to the deceased husband” (/). In the absence 
of agnate reversioners, the widow can adopt with the consent 
of the nearest cognate reversioner, e.ff., the father’s sister’s, 
son (g). It has been held m Rangoon that, if there are no. 
sapindas, the widow has an unrestricted power to adopt (k).. 
But this view seems to be opposed to principle and authority (i)^ 


(а) CheUatkainiruii atias AmmamuthamvwC v. 

KalUhuHha Pillai (1943) Mad. 107, 202 
I.C. 747, ('42) A.M. fiOO. 

(б) BrahniaSastn V. >Suinitramnm(l9^i) 57 Mad. 

411, 151 I.C. 200i.{'34) A M, 191. 

(c) Veera v. Batasunja (1918) 45 I.A. 285, 41 
Mad. 998, 48 I.C. 706, (’18) A.PC. 97. 
id) Adusumiiiiv, A*mmffli(1920) 47 I.A. 99, 
102, 43 Mad. 650, 654, 50 I.C. 301, (’20) 
A.PC. 4. 

(e) Vmkamnia v, Subnhmanian (1907) 34 I.A. 
22, 30 Mad, 50, 53, fllfdig. (1903) 26 Mad. 


627. 

(/) Bam Vdlanki v. Venlaia Ranm (1876) 1 
Mad. 174, 100-191, 4 I.A. 1, 14. 

(y) Besar Singh v. Secretary of Stale (1926) 49. 

Mad. 65‘2, 05 I.C. 051, (’20) A, M. 881. 

(ft) Patnaloo Appalsa'amy y. E. Moosalaya 
(1934) 12 Kang. 22, 147 I.C. 716, ('33) 
A.R, 334. 

(t) Balasubmmanya Pamlim Thalaii-ar v. 
Subbayyaierar (1938) 65 I.A. 93 (19,38) 
Mad. 551, 40 Bom, K.R, 704, 172 I.C. 724,. 
(■38) A.PC, 34. 


S.462 



546 


HINDU LAW. 


S.462 


Where the nearest sapinda consents to an , adoption 
but dies before the adoption, the adoption is nevertheless 
valid, provided there has been no material change of circum- 
stances during the interval and there are no other grounds on 
which the adoption when actually made could be objected to 
by the then nearest sapindas. A widow may adopt with the 
authority of the nearest sapinda though no particular boy was 
mentioned, within a reasonable period and when the circum- 
stances have not materially changed (j). Where a Hindu dies 
leaving a widow and a son, the widow, of course, cannot adopt 
to her husband while the son is living — -not even with his con- 
sent. But the son may consent to an adoption by the widow 
(his own mother) by his will, and such consent will validate an 
adoption made after his death. The fact that the son could 
have no interest in the estate after his death does not vitiate 
the consent. Nor is the adoption vitiated by the fact that the 
consent of sapindas living at the time of adoption has not 
been obtained (k). A sapinda having duly given his consent 
cannot arbitrarily or capriciously withdraw it (1). 

12 M. I. A. 397 — adoption with consent of all nearest sapindas held valid. 

4 I. A. 1 = 1 Mad. 174— „ 

46 I. A. 265=41 Mad. 998=48 I. C. 706=(’18) A.PC. 97 — adoption made without 

consent of nearest sainndas held invalid. 

47 I. A. 99=43 Mad. 6.50=50 I. C. 391 =(’20) A.PC. 4 — adoption with consent 

of 1 out of 6 sapindas, it not having been proved that the widow 
had apphed for the consent of the rest except one, held invalid. 

(3) If the husband was joint at the time of his death, 
the widow must obtain the consent of her father-in-law, and 
such consent is sufficient. If the father-in-law is then dead, 
the consent of all the husband’s brothers or other coparceners 
in whom the mterest of the deceased has vested by survivor- 
ship would be required, since it would be unjust to 

allow the widow to defeat their interest by introducing a new 
coparcener against their will (w). 


(4) Where the husband dies leaving imdivided copar- 
ceners and divided sapindas, the widow should obtain the con- 
sent of the undivided coparceners. An adoption with the 


0) Vasireddi Vmkayya v, Oopu Sreeramulu 
(1942) ilad. 163, ('41) A.M. 935 {F.B.]. 

(^) Annapumamma v, Appayya (1929) 52 Mad. 
620, 119 l.C. 389, (’29) A.3I. 577 fF.B.l. 
overruling A/amt v. Subbarayar (1913) 
39 Mad. 145, 19I.C. 663. 

(1) SivaBUryanarayana v, Avdinarayana (1937) 


Mad. 347 (F.B.), 166 I C. 339, (’37) A.M 
110 . 

(m) Colteetor oj Madura v. Bamahnga 

CLS68) 12 M.I. A. 397, 4¥l'442. But Bee 
V enkataknsJmamma v. AnrtapvmamtM 
(1900) 23 Mad. 4b0, 487-488;‘^and i^ara- 
yanasatni v^J^angamiml (1906> Mad. 
315, 310. 



ADOPTION BY WIDOW. 


547 


consent of divided sapindas, but without the consent of the 
undivided coparceners is, it seems, invalid (n). The widow of a 
member of a joint family can adopt a son to her deceased hus- 
band with the assent of the nearest divided sapmdas when the 
only surviving coparcener is insane (o). 

(4A) Though the husband was joint at the time of his 
death, and the coparceners afterwards separate, the widow 
can adopt with their consent. In this case the widow was in 
enjoyment of her father’s property as heir and the father’s re- 
versioners questioned the validity of the adoption (p). 

(5) Where the consent is obtained by the wddow by a mis- 
representation, as, for instance, that her husband had authorized 
her to adopt, but no such authority w^as given in fact, the 
adoption is invalid (q). 

(6) Where the consent is given by the husband’s kinsmen 
from interested motives, the adoption is invalid (r). It is also 
mvalid where the consent is purchased-, that is obtained by the 
widow in exchange for a sum of money or other valuable 
consideration (s). But there is nothing improper in a copar- 
cener making it a condition of his consent that his own share 
si'iould not be reduced by the adoption (t). 

(7) Where the consent of the husband’s kmsmen has been 
obtained, the -widow’s power to adopt is co-extensive with that 
of the husband. She may, therefore, adopt even an only son 
(which, though irreligious, is not illegal), just as much as her 
husband could have done (u) [sec. 481^ 

(8) An adoption made by the senior widow wdth the con- 
sent of the sapindas is valid, though made without the consent 
of the junior widow (v). But an adoption made by a junior 
widow without the consent of the senior widow is mvalid 
though made with the consent of her husband’s sapindas (w). 

(9) As to widow’s motive in making an adoption, see s. 469. 


(n) Sri ^{aqAiiitada v. Brozo Kishoro (187G) 1 3£ad. 
69, 3 I. A. 154 

(o) Chellalhamnuil aUas Ammamxithummal v. 

Kahlhurlha Pilfai (1943) Mud. 107, 202 
I.C. 747, (’42) A.M. 006. 

(p) Panyam v, liamalakshmamma (1932) 55 

Mad. 581, 138 I.C. 170, ('32) A.M. 227. 
(j) Karunabdhi Ganesa v. Gopala (1880) 2 Ma<l. 
270, 7 I. A 173; Venkamim v. Subra- 
maniam (1907) 30 Mad. 50, 34 I A. 22. 
(*•) (1880) 2 Mad. 270, 7 I.A. 173, supra. 

(«) Dinakoti v. Balasundra (1913) 36 Mad. 19, 


’ 18 1. C. 089, e.xplainmg Collector of Madura 

V, Moottoo Ramalinga (1868) 12 M.l.A. 
397, 443, 

(t) .Sruuoofa v, Jlangasami (1907) 30 Mad. 450. 

(u) Sri Batusu Ourulingasivami v. Sri Balusu 

Ramalakshmamma (1899) 22 Mad. 398, at 
p. 403, 26 I. A. 113 at p. 128. 

(v) (1905) 28 Mad. 315, supra. 

(w) Rafah Venkalappa v. Benga Rao (1916) 39 

Mad. 772, 30 I.C. 106, (’16) A.M. 919; 
Muthmami v. Pnlavaralal (1922) 45 Mad. 
266, 66 I.C, 504, (’22) A.M. 106. 


S.462 



548 


HINDU LAW. 


^.463 


463. In Bombay. — In tlie Bombay Presidency, a widow 
may adopt witliout authority from her husband, subject to the 
following conditions [s. 452 (4)] : — 

(1) She cannot adopt, if there be an express or implied 
prohibition from her husband (x). A mere refusal by her 
husband to adopt does not of itself amoimt to such a 
prohibition {y). Further, she cannot dispute an adoption 
made by her husband (z), nor can she adopt during the lifetime 
of a son adopted by her husband, though the validity of the 
adoption by her husband is doubtful {a)^ The power of a 
widow to adopt after her husband’s death is subject only 
to such restrictions if any as he may have imposed upon her (6). 
As a Hindu widow in Bombay has an inherent power to adopt, a 
prohibition or restriction, by the husband must be explicit. 
Where the husband prohibited the adoption of a son of V or 
K, but recommeirded that the son of one of his nephews should 
be adopted and the parents of the nephews were aU dead, it was 
held that the adoption of a son of a nephew was valid (c). 
The statement by the testator who gave all his property for 
charity that he is not going to adopt and that he is not going 
to give authority to his Avife to adopt does not amount to an 
implied prohibition by him of an adoption by the widow in 
respect of rvaten property. The adoption by the widow after 
his death (which in Bombay requires no authority) is valid 
as regards that property {d). See see. 462 (f ), 



^ (2) If the husband was separate at the time of his death, 
and the widow has succeeded to his estate as his heir, she 
may take a son in adoption rvithout the consent of her husband’s 
sapindas (e). 

(3) The law relating to the power (to adopt) of a widow, 
whose husband was joint at the time of his death, has 
been the subject of fluctuations. Four distinct landmarks 
may be recognised. 


(z) Gopal V. Vishnu (1891)) 23 Bom. 2o0, 256; 
Laksh/nibax v. ,Sara8vaitbai (1899) 23 Bora. 
789, 795-707 ; Malgavda v. Babajt (1913) 
37 Bora. 107, 17 l.C. 746. 

(y) Silabfli v. Goiindrao (1927) 51 Bom. 217, 
101 I. C. 46, ('27) A.B. 151 ; Ishivar Dadu 
V. Gajabai (1926) 50 Bom. 468, 537, 96 
l.C. 712, ('26) A.B. 435 (F.B.J. See 
Bayabai v. Bala (1870) 7 Bom. H. C. 
App. I discusaed in Sttabai'e case. 

(z) Chimabai v. Mallappa (1922) 46 Bom. 046. 

67I.C.654,('22)A. B. 397. 

(a) Bhau v. Narasayouda (1922) 46 Bom. 400, 


64 l.C. 014, ('22) A.B. 300, affmg. Bhujan- 
yoiida V. Ba6u (1920) 44 Bom. 627, 57 I.G. 
573, (’20) A.B. 115. 

(6) Jagannatk liao Dani v. Bam Bharosa (1933) 
00 I.A. 49, 141 l.C. 520, (’33) A. PC. 33, 

(c) Bamodar Vishnu v. Shriram Laxman (1941) 
Bom. 170, 103, l.C. 413, ('41) Bom. 56. 
(rf) Vithagouda v. Secretary of State (1932) 34 
Bom, L. 11. 818, 140 l.C. 242, (’32) A.B. 
442. 

(c) Bakhmabai v. i?ad/ur6ai (1868) 5 Bom, H. C 
A. C. 181 ; Collector of Madura v. Moottoo 
Itamahnga (1868) 12 M.l.A. 397, at p. 436. 



ADOPTION by' WIDOW. 


549 


(i) (1879-1921). In 1879 d Full Bench of the Bombay S. 463 
High Court held (/) that such a widow cannot adopt, when she 

has not the authority of her husband or the consent of his 
undivided coparceners. In 1 891 , it was held that the consent 
of the father-in-law at the time of adoption is sufficient {g). 

(ii) (1921-1925). In the case of Yadao v. Namdeo (h) 
which went up on appeal to the Judicial Committee from the 
Central Provinces, the parties were Hindus to whom the Hindu 
law applicable to Hindus of the Maharatta coimtry of the 
Presidency of Bombay applied. The facts were that one 
Pundlik, his cousm Namdeo, and Namdeo’s sons Eambhau 
and Pandurang, were members of a jomt family. Pundlik died 
childless in 1905. Soon after, Namdeo gave his son Pandurang 
in adoption to Pundlik’s widow. The adoption was evidenced 
by a deed. Pandurang died unmarried in 1907 and the widow 
adopted a stranger without the consent of Namdeo. The 
Judicial Commissioner of Nagpur held that Pandurang and 
Namdeo’s family were undivided at the time of Pandurang’s 
death and that the adoption, having been made -without the 
consent of Namdeo and his son, was invalid. The Judicial 
Committee reversed the decision and held that the adoption 
was valid. 

They observed “ Their Lordships find as a fact and hold 
in law that on the date of that deed Namdeo and his son Ram- 
bhau had separated from Pandurang, and had ceased to be 
members with Pandurang of the joint family, although no 
partition of the family property had been effected.” Later 
on, they also observed referring to the decision in Bayabai 
V. Bala (i), “ There is nothing in the judgment of Westropp, J., 
which confined his observations as to the power of a Hindu 
ividow in the Maharatta country of the Bombay Presidency 
and in Gujarat with the consent of relations to cases in which 
the widow was the widow of a separated husband ; his observa- 
tions appear to their Lordships to have been general and to 
apply to either class of cases.” 

(iii) (1923-1932). In Ishwar Dadu v. Gajabai {j) decided 
by the Bombay High Court in 1925, it was contended, on the 

(J) Ramji v. Gkaimu (1870) 0 Bom. 498 (F.B.] ; alter hia death], 

Dinkar v. Ganesh (1882) 6 Bom, 505 (A) (1921) 48 I. A. 513, 49 Cal. 1, 64 I. C. 536, 

[F.B.). (’22) A.PC. 210. 

(r/) VUhoba V. Bapu (1891) 15 Bom. 110 ; Lak- (i) (1870) 7 Bora. H.C., Appx. 1. 

shmibai v. FisAnw (1905) 29 Bom. 410 0) (1925) 50 Bom. 468, 96 I. C. 712, (’26) A. B. 

[consent of iatberdn'law cannot operate 435 [F.B.]. 



550 


HINDU DAW. 


S. 463 basis of the above observations of the Judicial Committee, 
that the decision in Ramji v. Ghamau (k) and the decisions 
that followed it were overruled by the Judicial Committee. 
The question was referred to a Full Bench. The Full Bench 
held, hv a majoritv of four against one, that the observations 
of the Judicial Committee were obiter and that the earlier 
decisions of the Bombay High Court beginning with Ramji 
V. Gharnauk {k) were not overruled. In a later case where the 
coparcener was still in his mother's womb at the date of 
adoption, it wa.? held that the adoption was invalid U). 


(iv) (After Xovember, 1932). The facts of an appeal 
which arose from the Dharwar District of Bombay and which 
was decided by the Judicial Committee in 1932 were these. 

J and K were three brother.5 of whom iN and J were tmdivided 
and K was dmded from them. K died in 1932 leaving a son G. 

J died in 1913 leaving his widow B. N died in 1915 leaving 
his son D. In 1919 D died leaving his son D.T. who was bom m 
1918. During the life time of D.T., J's widow, B, adopted 
Xarayan in 1919. Afterwards, in 1920 D.T. died. G brought 
the suit ciuostioning the validity of Xarayan’s adoption. The 
High Court of Bombay, following the Full Bench judgment in 
Ishnar Dadii’s case (?«') held that the adoption was invalid as the 

joipt family had not r-p.iisefl a.nd B cnpld not adopD-withoiit 
t he consent Q£J ihe-s Qle.-cnpa,rcener ( D.T.) . The Judicial Com- w 
mittee held that Ramji v. Ghamau (n) Avas OAwruled by 
Yadao's case (o) and that the decision in IsJiwar Dadu's 
case {m) was erroneous and reA^ersing the High Court’s 
judgment held that the adoption AAns A-alid (p). The rule was 
regarded as firmly established in a later decision of the Judicial 
Committee from Bombay (q). 


The subject-matter of sections 462 and 463 should be carefully distinguished from that 
of secs. 471 and 472, The former sections deal with the question whether the widow can 
have a power to adopt when the husband has not given an authority ; whereas the latter 
deal with the question as to how a widow's authority (whether from the husband, or sapin- 
dfls or inherent as in Bombay) may terminate on the happeninpi of certain events. The 
latter sections are not confied to Madras and Bombay, but apply to the whole of India. 


(A) (1882) 6 Bom. 498. 

.(/) Bala Alina v Akubai (1926) .00 Bom. 722, 
99 I. C. 417. {'20) A B. 584. 

(m) (192?) 50 Bom. 4fi8, 96 I.C. 712, ('20) A.B. 
435 [F.B.j. 

(Ti) (1882)0 Bom 498. 

( 0 ) (1921) 48 I. A. 513, 49 Cal. 1, 64 I.C. 530, 
f'22) A.?C. 216. 

(p) Bhirnabai v. Gurunath'jov'da (1933) 57 Bom. 


157, 00 T A. 25. 141 I. C. 0, ('33) A.PC. 1. 
(f) Vxjnyean(j)\\. (1935) 62 I. A. IGl, 

59 Bom. 360. 1.55 I.C, 493, (*35) A.PC 9.5 ; 
Bhondi Dnyanoo v llanui Bala (1936) 

60 Bom. 83. 39 Bom. L.H. 94. 161 I.C. 
849, (’36) A.B. 132 ; Balu Saknram v. 
Lahoo Bambhaji (1937) Bom. 508 [F.E ], 
39 Bom. L.R. 382, 170 I.C. 393. (’37) 
A .B. 279. 



ADOPTION BY WIDOW. 


551 


(4) Case of two widows . — Where there are two or more 
widows, the senior widow may adopt without the consent 
of the junior widow or widows (r) ; but the junior widow 
cannot adopt without the consent of the senior widow, unless 
she has an express authority to adopt from her husband (s). 
Where the senior widow relinquished her right of adoption in 
favour of the junior widow for consideration, an adoption by 
her on the ground that the j unior widow has not exercised the 
right is invalid (i). ^ 

If the husband was jomt with his father at the time of his 
death, the junior widow may adopt with the consent of her 
husband’s father, and such adoption is valid even if it is made 
without the consent of the senior widow (u). 

As to the termination of the senior widow’s power to adopt, when the junior widow 
has a son who dies and is succeeded by the junior widow as his heir, see see. 472. 


GENERAL RULES AS TO ADOPTION BY WIDOWS. 

464. Extent of widow’s power to adopt. — A widow has 
no larger powers of adoption than what her husband would 
have, if alive (v). 

Thus a widow cannot adopt so long as there is a son, grandson or great-grandson 
natural or adopted, of her husband, in existence. See sec, 463 {!). 

465. Minor widow. — A minor widow may adopt in the 
same circumstances as an adult widow, provided she has 
attained the age of discretion and is able to form an indepen- 
dent judgment in selecting the boy to be adopted [w). 

According to Bengal writers the age of discretion is reached at the beginning of 
the sixteenth year ; according to Benares writers, at the end of the sixteenth year. The 
former view was taken *in a recent Madras case (y). All authorities agree in holding that 
the widow must have attained competence for independent judgment. But no such 
judgment is required when the boy to be adopted is named by the husband in the 
authority to adopt. In such a case she can adopt though she has not attained the age of 
discretion (y). 


(r) Rakhmabai v. Radhabai (1868) 5 B. H. C. 
A. C. 181 ; Basappa v. Sidramappa (1919) 
43 Bom. 481, 50 I. C. 736 ; Amava t. 
Mahadgauda (1808) 22 Bom. 416 ; 

Dundoobai Anandrao v. Vithalrao 
Anandrao (1036) 00 Bora. 498, 38 Bom. 
L. B. 193, 162 I.C. 780, (’36) A.B. 182. 

(a) Ba Sappa v. Sidramappa (1919) 43 Bom. 
431, 50 I.C. 736 ; Padajirav v. Ravirav 
(1889) 13 Bom. 160. 

(f) Sadashiv Woman v. Reshma (1938) Bora. 
84, 39 Bom. L.R. 1115, 173 I.C. 509, 
(’38) A.B. 1. 

(u) Dnyanu v. Tanu (1920) 44 Bora. 508, 57 I.C. 
113. 


(u) Oopee hall v, Chiindraclee (1873) 11 Benji, 
L. E. 391 1. A. Sup. Vol. 131. 

(if) Saitirajn v, TVafrcfasit'ami (1917) 40 Mad. 
925, 40 I. C. 518 [12 years old — cannot 
adopt]; Basappa v. Suiramappa (1919) 

43 Bom. 481, 50 I.C. 736 [15 years old- 
can adopt] ; J^Turgeppa v. Kalawa (1920) 

44 Bom. 327, 55 I C. 3C1 [12 years old — 
cannot adopt] ; Parratava v. Fakimaik 
(1922) 46 Bom. 307, 64 I. C. 899, 
(’22) A. B. 105 [121 years old — cannot 
adopt]. 

(x) (1917) 40 Mad. 925, 929, 40 I.C. 518, supra. 

(y) Aftmdakini v. Adinaih (1891) 18 Cal. 69. 


St. 

463^55 



552 


HINDU LAW. 


Ss. 

466-470 


466. Unchaste widow. — (1) It has been held that an 
unchaste widow camiot adopt, even though she may be acting 
under an express authority from her husband (z). 

(2) In the Bombay Presidency a Sudra widow, though 
imchaste, may make a valid adoption [a). 

Sitb-sec. {!)■ — Thus it has bet-n held that a widow pregnant by adultery cannot 
adopt. The reason given is that her irregnlat life renders her incapable of performing - 
the necessary religious ceremony. 

467. Re-marriage of widow. — A widow cannot, after re- 
marriage, adopt a son to her first husband (6). 

468. Successive adoptions. — A widow may adopt several 
sons in succession one after the death of another, imless there 
is a specific limitation placed on her power to adopt (c). 


lUxisiration. 

A authorises his tvife B to adopt a son to him after his death B adopts C. C then 
dies unmarried. B may adopt another son to A. The authority to adopt is not exhaust- 
ed on the adoption of C, 

In the above case it was argued that by the adoption of the first adopted son, all 
the spiritual benefit to be derived from the act was seemed to the deceased, and that the 
adoption of a second boy was, therefore, supererogatory. But this contention was 
rejected by the Privy Council, As to simultaneous adoptions, see sec. 485 below. 

469, Motive of adoption.— The motive of a widow in 
making an adoption is not material upon the question of its 
validity {d). The Court can enquire into the motive.s of the 
husband’s sapindas in giving [s. 462(6)] or refusing co.nsent 
to an adoption to a widow (e). 

3Ioney paid to a widow to induce her to adopt a son is in the nature of a bribe, which 
is condemned by all smriti writers as an illegal payment [f}. 

470. Co-widows — Where a Hindu dies leaving two or 
more i\fidows, the adoption by the uddows, where an expre.ss 
authority is left by the husband to adopt, i.g governed by the 


( 2 ; SayaTnal/il v. Saudamini (1870) 5 Beuir. 
L. R. 362. 

(o) Bamanl v. Mallappa (1921) 45 Bora. 459, 
59 1. C. 800, (’21) A.B. 301. 

(6) Panrhappa v. SamjanbasaKa (1900) 24 Bom. 
89, 94 . Fakxrappa v. Saiilrewa (1921) 23 
Bom. h. R. 482, 62 I.U. 318, ('21) A.B.l 
[F.B.). 

(c) Suryanarflyana v. Venfealaromana (1906) 29 
382, 33 I. A. 145 : Yadao v Hamdeo 
(1921) 48 I.A. 513, 49 Cal. 1, 64 l.C. 636. 
(’22) A.PC. 218. 


(rf) Tiarnrhandra v. (1898) 22 Bom 5.'8 

(F.B.) : Mabablef^huar v. hurgabax (1898) 
22 Bom. 199 See aI*o /fwjH Makund 
Dfb V. St\ Jarpinnnlh (1923) 2 Pat. 409, 
485-480, 72 1. 1’. 230, (’23) A. P. 423; 
KandulupaU Kanakaralnam v. Kandtdpafi 
ICaraMimha Jiao (1942) Mad. 173, 198 I.( . 
230, (’41) A. M. 937 (F.B.]. 

(e) Rajah Vellankx v. Venkata (1876) 1 Mad 
174, 190-191. 4 I A, 1, 14 ; Krishnayya 
Itao V. Raja of Pitapur (3928) 51 Mad. 
893, 116 l.C. 673. (’28) A. M. 994 {F.B ]. 
(/) Shri Silaram v, Harikar (1911) 35 Bom. 
169, 8 I. C. 025. 



ADOPTION BY WIDOW. 


553 


rules laid down in section 455 above. Where no such authority 
is given, the adoption by the widows in Madras is governed by 
the rule laid down in section 462, sub-section (8) and in 
Bombay by the rule laid down in section 463, sub-section (3). 

The only schools which allow an adoption by a widow without her husband’s autho- 
rity are the Dravida (Madras) school and the Maharashtra or Maharatta (Bombay) 
school. 

TEBMINATION OF AVIDOW'S POWER TO ADOPT. 

471. Generally . — {!) A widow’s power to adopt con- 
tinues all her lifetime — ■ 

(i) in all cases where her husband has died without 
leaving any son [see explanation I and ills, (a) to (c)] ; 

(ii) in cases where her husband has left a son, if the son 
dies leaving her (his mother) as his nearest heir {g) 
[ills, (d) and (e)]. 

In the first case, the widow succeeds to the estate as her 
husband’s heir ; in the second case, she succeeds to the estate 
as the heir of her son {i.e., as his mother). In either case, the 
estate vests in her, in the one case immediately on the death of 
her husband, in the other case, immediately on the death of her 
son. By adoption she divests no estate except her own. But 
vesting or divesting is no longer of importance. See Aniarendra 
Mansingh’s case. See also the Hindu Women’s Bights to 
Property Act, 1937, under which it seems the adopted son will 
now take a moiety of the interest which vests in the adopting 
widow. 

In the second case, the mere fact that the son had attained 
majority (which would be at the age of eighteen), or had 
attained ceremonial competence (which would be at the age 
of fifteen), does not extinguish the widow’s power to adopt 
to her husband {h). 

(2) (a) If the son dies leaving a son or a wife, the widow’s 
power to adopt comes to an end at his death, and she cannot 
thereafter exercise it, though she may have been expressly 
authorized by her husband to adopt in the event of the son’s 


(ij) Verabhai v. Bai Jliraba (1903) 30 T. A. 234, 
27 Horn. 492; Gaidupp'i v. Giriinallappa 
(1805) 19 ]lom 331 , Mitllapru v. JIan- 
mappa (1920) 44 Bom. 297, 55 I.C 814. 

(A) Tripurain'm v. Vcnhdtimlnam (1923) 40 
Mail 423. 72 I U. 150. ('23) A, M 521 ; 
explaitimir Mudana Mohana v. P«ntf>ho- 
thami (1918) 45 I A. l."»(), 41 Mail. 855, 
40 I.Ch 481 ; Venkuppa v. Jicagl (1901) 


25 Horn 30G , Kannepalli Sunjanarayana 
V. VenkaUimmnna (1900) 33 I A 145, 
154, 29 SLid, 382, 389'390; Verabhai v. 
Bai Jliraba supra : Anprabai v. Panda- 
rang (1924) 48 Bom 492, 80 I C. 185, 
(’24) A B. 441 . 8hashankbhoosh<iii 
Chaudn v Btiije'idrauantmn Mandat 
(1030) 03 Cal, 385, 159 I.C 437, (’35) 
A.C 710. 


Sa. . 

470,471 



554 


HINDU LAW. 


S.471 


death. The reason is that the estate then vests in an heir 
of the deceased son and the widow cannot adopt to her husband 
so as to devest the estate taken by that heir {i) [ills, (f) and (g)]. 
In a recent Privy Council decision the true reason is said 
to be that “ where the duty of providing for the continuance 
of the line which was upon the father, and was laid by hirn 
conditionally upon the mother, has been assumed by the son 
and by him passed on to a grandson or to the son’s widow, 
the mother’s power is gone ’’ {j). 

(b) If the son dies leaving a daughter, it has been held 
in Bombay that the adoption is vaUd (A:). 

(c) If the son is a step-son of the widow having the 
power to adopt and dies leaving his own mother (or, the mothfer 
having predeceased him, grandmother) it was held (before 
Amarendranath Singh's case) that the adoption was invalid (1). 
But as the son’s mother or grandmother cannot discharge the 
duty of providing for the continuance of the line, these decisions 
cannot be supported. 


{3) It was formerly held that the power to adopt once ifc 
comes to an end becomes extinguished for ever, and it does not 
revive even when, on the death of the son’s nearer heirs, the 
estate reverts to the widow and becomes vested in her (m). 
The question arises whether, after Amarendra Mansingli’s 
case these decisions are good law. In a recent case in Nagpur 
it was held that on the remarriage of the son’s widow the 
property came back to the mother and then the mother could 
adopt — the power being only suspended and not extinguished 
[111. (f)]. 

(4) Subject to the above provisions a widow may adopt 
at any time she pleases, unless there is a direction to the 
contrary {n). Thus in one case an adoption made by a widow 
seventy-one years after her husband’s death was upheld (o). 


(•) 


0 ) 

»•) 


Mst Bhoobun JHoyee \. Ham K\shore (1865; 
10 M.I.A. 379 , Badma Kumariy. Court o\ 
Wards (1882) 8 Cal 302, 8 I.A 229 
Thayamrml v. Venkatarama (1887) 1( 
Mad. 205, 14 I.A. 67; Tarachurn v 
Sureshchund^r (1890) 17 Cal 122, 16 £.A 
166 ; Amara v. Mahadgauda (1898) 25 
Bom 416 ; Hamkrishna v. Shamrao (1902 
2^ Bom. 526 [F.B.] ; Anandxbai v 
Rashxbax (1904) 28 Bum. 401 ; Faxzuddii 
V. Tincoivri (1895) 22 Cal. 565, 

Amarendra Mansinghy .Santf«a»A’m»7A(l933 
12 Pat 642, 60 I.A. 242, 143 I C 441 
(•33)A.PC.100. 

CkumOasappa v. iladiwalappa (1937) Bom 


642, 39 Bom. L.ll 501, 170 I.C. 990, 
(■37) A B, 337. 

(I) AnanUibax v. Kashxbai (1904) 28 Bom. 461 , 
Faiiuddiri v. Txncowri (1895) 22 Cal. 
565 , Drobomoyee v. Shama Chum (1886) 
12 Cal. 246. 

Cm) Krufbnarao v. Shankarrao (1893) 17 Bom. 
164 ; Hamkrishna v. Shamrao (1902) 
26 Bom 526 ; Manikamala v. A^an- 
(1906) 33 Cnl. 1306. 

(n) Giriowa v. Bfnmagi (1885) 9 Bom. 58; 

Mutaoaddi v. Kundan Lai (1905) 28 All. 
377, 33 I.A. 55. 

(o) Raje V. Jayaxantrav (1867) 4 Bom. H.C. 

A.C. 191. 



ADOPTION BY WIDOW. 


555 


(5) The provisions of this section apply to all cases govern- S. 471 

ed by the Dayabhaga law, whether the husband was divided 
or undivided at the time of his death, and to those cases 
governed by the Mitakshara law where the husband was divided 
at the time of his death. The next section applies to cases 
governed by the Mitakshara law, where the husband was 
imdivided at the time of his death. 


Explanatiinn I. — “Son” in this section means a son, 
grandson, or great-grandson, natural or adopted. 

Explanation II. — A son adopted by a widow to her hus- 
band after his death is a son left by the husband within the 
meaning of sub-section {!), cl. (ii) [see ill. (d)]. 

Illustrations, 

(a) A diea leaving a widow as his only heir. The widow may adopt a son to A, 
[Sub-aeo. (i), cl. (i)]. 

(b) A dies leaving a widow and a daughter. The widow may adopt a son to A. 
It does not matter that A has left a daughter. The daughter is not entitled to succeed 
until after the widow, and she has no voice in the matter of the adoption. [Sub-sec. 
(1), cl. (i)]. 

(c) A dies leaving two widows in whom his property vests as his heirs. The widow 
having authority to adopt or, in Bombay, the senior widow without any authority adopts 
without the consent of the co-widow. The adoption is valid (p). 

(d) A dies leaving a widow Tl'’ and a son. On .4’s death, the son succeeds to the 
estate. The son then dies unmarried. On his death, W succeeds to his estate as his 
heir (i.c., as his mother). W may adopt a son either under an authority from A (g) or in 
Madras, with the consent of .4’s sapindas (r), or in Bombay, without any authority. 

In the above case, if the adopted son dies unmarried, W may again adopt with proper 
authority, if necessary, or in Bombay without authority (s). 

(dl) A dies leaving a widow and two sons. The sons die successively. The 
mother’s pow’er to adopt does not come to an end and she can adopt. 

(d2) If in the above case one son dies married then a few days later his widow 
dies and then the second son dies, the mother’s authority to adopt is not terminated 
and she can adopt (/). 

\ (e) A dies leaving a widow and a grandson B, On .4’s death, B succeeds to the 

estate as .il’s grandson. B then dies without leaving any wife or children. On B’s 
death, the widow succeeds to the estate as B’s grandmother. The widow may adopt 
a sou to her husband A : Narhar v. Bahvant (1924) 48 Bom, 559, 80 I.C. 435, (’24) A.B. 
437. But if B dies leaving a wife or child, the widow’s power to adopt comes to an end. 
[Sub-sec. (J), cl. (ii) — also Expln. I]. 


(p) Mandul-ini v. Adinath (1891) 18 CnI. 69; 
. Rakmabai v. Radhabui (1808) 5 Boin. 
H.C.A.C. 181. 

iq) Amarendra Atansingh v. 5anafan Singh (1933) 
12 Pat. 642. 60 I.A. 242, 143 I.C. 441, 
('33) A.PC. 155. 


(r) Raja Vellanki v. Venkata Rania (1876) 1 

2H.id 174, 190-191, 4 I A. 1, 14. 

(s) Ram Soondur v, iSurbanee Dossee (1874) 

22 W.R. 121. 

(t) An(in< Gonnd v. Dnyaneshivar Balkrishna 

(1944) Boiii 218. 



556 


HINDU LAW. • 


Ss. 

471, 472 


(f ) A dies leaving a widow and a son B. On A 's death the estate vests in 5. B 
dies leaving his wife C who succeeds to the estate, ^*s widow then adopts a son to A 
during the lifetime of C, 

fi) under the authority of husband — Chunderbulle’s case (« ). 

(ii) (in Madras) with the assent of A’s sapindas — Thayammal v. V enkatrama (v). 

(iii) (in Bombay) under her inherent power — Keshab v. Qobind {w). 

In aU the above cases, the adoption is invalid. 

Even if B is an adopted son, the same result follows (r). 

Even if the widow adopts after C’s death, it has been held by the Bombay High 
Court that the adoption is invalid, because the W'idow'*s power to adopt was at an end 
when the estate devolved on C (y), but this is in conflict with a recent decision of the 
Nagpur High Court ( 2 ). In that case a Hindu died leaving his wddow and son. The 
son died leaving his widow who then remarried. The mother then adopted. It was 
held that adoption was valid ( 2 ). 

(g) A dies leaving a widow It' and a son B. On .4’s death, B succeeds to the 
estate. B then dres leaving a son C. On B'a death, C succeeds to the estate as B's 
son. C dies unmarried leaving IT, his grandmother, as his ne.xb heir. On C’s death 
his estate vests in IT as his heir. If then adopts a son to .4. The adoption is not valid 
for the reasons stated in ill. (f) : Bainakrishna v. Shamrao (1902) 26 Bom. 526, approved 
in Madana iloliana v. Pitrubholhama (1918) 45 I.A. 156, 41 Mad. 855, 40 I.C. 481, cited 
in illustration (f) above. In this case also it is clear that the widow would not, by 
adoption, divest any estate but her own. [Sub-sec. (3)]. 

The decision in Kuinud v. Bamesh (1919) 46 Cal. 749, 49 I.C. 609 cannot be regarded 
as good law. 

The subject-matter of this section is closely connected w'ith another subject, namely, 
divesting of estate by adoption, as to which see sec. 502. As to adoption by a widow 
with the consent of tho person in whom the estate is vested, see sec. 50,8 below. 


472. Is there a limit to the power of the widow to adopt 
when the husband was a member of the joint family at the time 
of his death ?— (1) Bo long.as there is a male member in the co- 
parcenary the power to adopt does not terminate and the adop- 
tion is valid [Ills. (a), (b) and (c)]. 


(2) It was at one time supposed that where the last surviv- 
ing coparcener died and the property passed to his heir, such 
as a widow or collateral, the power of the widow of a predeceased 
coparcener was at an end (a). But it is now definitely settled 
that such cases must be regarded as overruled by the decision 
of the Privy Council in Anant v. Shankar [b). 


(u) Bhoobun Mopee v, liant Kishore (1805) 10 
M I.A. 27‘J ; I'udma Kuniari v. Court 
0 / (1881) 8 I.A. 229. 8 Cal. 302 

(ti) (1887) 10 Mad. 205, 14 I.A. 67. 

(u;) (1884) 9 Bom. 94. 

(i) Madana Mohana v. Purughoihatna (1918) 
45 I.A. 156, 41 Mad. 855, 46 I.C. 481. 

{y) Krishnarao v. 87ianAarrao (1898) 17 Bom. 


164 , Maniekaniala v. Nandakumar (1906) 
33 Cai. 1300. 

{z) Bapuji V. Ganqaram (1941) Nag. 178, 193 
I.C. 282, ('41) A. N. 116. 

(а) Chandra v, Gojarabai (1890) 14 Bom. 403; 

Adivi Suryaprakasarao v. Nidamarty 
Gangaraju (1910) 33 Mad. 228. 

(б) (1944) Bom. 116. 



ADOPTION BY WIDOW. 


557 


llluairalioTLa. 

(a) A and B are undivided brothers governed by the Mitakshara law. A dies 
leaving authority to his widow to adopt a son to him. On A’s death his undivided half 
share in the coparcenary property passes to B, the surviving coparcener. While B is 
still alive, A’s widow adopts a son to A. The effect of the adoption is that a coparcenary 
interest is created in the joint property co-extensive with that which A has in the 
property (that is, one-half), and it vesta in the adopted son (c). 

(b) A and B, two brothers, are members of a joint family. A dies leaving a widow 
who is pregnant at the time of hia death. B then dies leaving a will whereby he authorizes 
his widow to adopt a son to him. The day next after B’s death, A’s widow is delivered 
of a son. After three months B’s widow adopts a son to B. The adoption is valid, and 
A's son and the adopted son will take the property as coparceners [d). See ill. (b) to s. 497. 

(c) Where one branch of a joint family divided amongst themselves and the widow 
of another branch of the family being its sole surviving member made an adoption it was 
held that the adoption was valid and the adopted boy was entitled to reopen the parti- 
tion as a step towards getting his own share (e). 

The Nagpur High Court has held that adoptions by two widows of the members of 
the joint family after the death of all the male members are valid (/). 

In applying the above principle to impartible estates, it 
must be remembered that such an estate iT’ a species of 
coparcenary even though the junior members are not entitled 
to enjoy the property or to demand a partition or to prevent 
alienation. (*See s, 587.) 

Illustrations. 

(d) A , the zemindar of tho impartible estate of Chinnakimidy in Madras, died-leaving 
his brother B and a widow K. The widow adopted B under the authority of her husband. 
The adoption is valid though the zemindary was not vested in her. The result of the 
adotpion is that a new coparcener is introduced into the senior line. The adopted son 
divests B and becomes zemindar. The last result is a special result on account of the 
impartibility of tho estate (g^). 

(e) B, the zemindar of Dompara Raj in Orissa who had previously in 1898 given 
to his widow an authority to adopt, died in 1903. In 1902 a son C was born to him. 
0 succeeded his father and died in 1922 unmarried. B’s widow then adopted. At the 
time of O’s death, there was a junior branch in whom the zemindary was vested. The 
Judicial Committee reversing the judgment of the Patna High Court, held that the 
adoption was valid (4). 

(f) C, the talukdar of the impartible estate of Ahima in Bombay, died in 1899 
leaving his brother B, his son D and his widow K. In 1915, D was given away in adoption 
and then IC adopted Al in 1917. The Judicial Committee reversing the judgment of the 
High Court held that the adoption was valid (i), 

(g) K, a junior member of the family of tho Thakore of Gumph in Bombay, while 
in possession of a village granted to his ancestors, ajivai grant for maintenance on condi- 
tion that it should revert to the Thakore on failure of the male line, died in 1903 leaving 


(c) liurendra Nandan v. Sazlaja, supra. 

(d) Bachoo V. ManJeorebat, supra. 

(«) Bajirao v. Ramkrishna (1941) Nag. 707, 
198 I.C. 581, (’42) A. N 19. 

(/) Mst. Draupadi v. Vikram (1939) Nag. 88. 
(ff) liaghunada v. Broro Kishoro (1870) 1 Mad, 


69, 3 I.A. 154. 

(ft) Afnarendra Mansingh v. Sanaian Singh 
(1933) 12 Pat. 642, 60 I.A. 242, 14S I.C. 
441, ('33) A.PC. 155. 

(i) Vijagsangji v. Shivsangji (1935) 37 Boiu.L.R. 
562, 155 I.C. 498, (’35) A.PC. 05 reversing 
the judgment of the High Courc. 


S.472 



658 


HINDU LAW. 


47^474 


a ■R'ido\v D. D adopted P in 190d. Reversing Iho judgment of the High Court, the 
Judicial Committee held that the adoption was valid and that the Thakore was not 
entitled to the -sdllage. Thoy consideied the case to bo similar to the Borhampore case 
thus implying that the village held in jii'ai grant must be regarded as the joint family 
property of both the branches though in actual enjoyment of the junior branch (j). 

Wotan properly. — A, a watandar in Bombay, died leaving a widow. She adopted a 
son C. C then died and the watan devolved on a collateral G. G then gave his son 8 in 
adoption to the widow. 8 died leaving daughters. The uidow then made a third 
adoption. It was held that the widow’s power to adopt was not extinguished by reason 
of the watan vesting in G or by reason of S's leaving daughters (I*). In the light of 
Bimahai's case {}) and this decision, the decision in Bhimahai v. Tayappa (1913) 37 
Bom. 5US must be regarded as overruled. 


A Hindu died leaving his widow G and son A^ K then died and the watan property 
of the family passed to a remote collateral 8. The widow G tlien adopted a son. The 
Privy Council held that the adoption was valid and divested iS of the watan 
properties (m) oveiTulmg the full bench decision of the Bombay High Court (n). 

A similar decision had been previously arrived at by the Bombay High Court (o). 


473. Adoption by widow succeeding as gotraja sapinda 
in Bombay. — An adoption by a widow which is prirna facie 
valid caimot be affected by the fact that certain property 
has devolved upon her as gotraja sapinda of the last male 
holder. In such a case though the adoption itself is valid 
it cannot affect the cour.se of devolution of the property she 
obtained as a gotraja sapinda (p). 


Illustration. 

On the death of the last male coparcener in a joint family the property passed to 
his mother ; after her, to his grandmother, and after her, to his paternal uncle’s widow 
who then adopted. The Full Bench of the Bombay High Court held that though the 
adoption is valid, it has no effect on the course of devolution of the property (p). 


11.— PERSONS LAWFULLY CAPABLE OF GIVING IN ADOPTION. 

474. Who may give in adoption. — The only persons who 
can lawfully give a boy in adoption arc his father and his 


mother {q). 


ij) pTatapnvij \. Agarsingji (lOlU) 40 I. A. 07, 

43 Bom 778, GO J.U. 457. 

(fr) Chamha^nppa y. Madiicalappa (1037) Bom. 
64*2, 30 Born. L II. 501, 170 I C OUO, 
(’37) A,B. 337. 

(/) (1933) 57 Bom. 157, 60 I.A. 25, 141 I C. 9. 
(’33) A.L’C. 1. 

’ {m) Anani hikknppa v, ShanJci’r Ramachnndra 
(1944) Bom. 110, 70 I.A. 232 (1043) 
A. PC 196. 

(n) Baht fiaknram v. Lahu Snmblmji (1037) 
Bom 508 fP.B.I, (’37) A B. 279. 'JT-c 
cu'^es of Ti jratn v. Suruprhand (19‘d0) 

44 Bom. 183, 55 J C. 96 and Irappa 


Jjokappa V. Jiurhayya Mudiiallayya (1940) 
Bom. 42, 187 I C. 504, 41 Eom. L.B. 1300, 
(*40) A.B. 118 must be reparded, as 
overruled. 

(o) Lingappa Rayappa v. Kadappa Bapurao 

(1940) Bom. 721, 101 I.C. 504, (’41) A.B. 
345. 

(p) Kri'-hnaji Uaghunath v. Bajarnm Trimbak 

(1938) Bom. 679, (’38) A.B 383 1P.B): 
Jilttdfiui' Sang Hanbhai v. Vipoany 
Jinbkai (1042) Bom. 812, 203 I.C. 339, 
(*42) A B. 300, 44 Bom L.Il. 678. 

(g) Puilubai v iiraftadu (1909) 33 Bom. 107, 
1 I.C. 059 



WHO MAY GIVE IN ADOPTION. 


569 


S«. 

474.478 


475. Eight of father. — The primary right to give in 
adoption is that of the father (s). 


Thu8 one brother cannot give another brother in adoption. Similarly a step-mother 
cannot give her stepson in adoption. Nor can a grandfather give his grandson in 
adoption. A woman is incompetent to give in adoption her illegitimate eon, bom of 
adulterous intercourse (r). 


476. Eight of mother. — (i) The mother cannot give her 
son in adoption, while the father is alive and capable of 
consenting, without his permission. But she may do so, if he 
has become incapable of giving his consent, or if he has 
renounced worldly affairs and entered a religious order, or after 
his death, provided there be no express or implied prohibition 
from him (t). 

(2) It has been held by the High Court of Bombay 
that a widoAV has no power after her remarriage to give 
in adoption her son by her first husband, unless she has 
been expressly authorized by him to do so («). In a later 
case, the same High Court expressed the opinion that re- 
marriage did not deprive a widow of her right to give such son 
in adoption (v). 

477. Delegation of power. — The power to give a boy in 
adoption belongs exclusively to his parents, and it can be 
exercised by them alone. Neither parent, therefore, can dele- 
gate that power to another person {w). But the physical act 
of giving the son in adoption may be delegated to another, as 
such an act involves no exercise of discretion {x). 


478. Eenunciation of Hindu religion. — A Hindu father, 
who has become a convert to Mahomedanism, does not, 
by reason of his conversion, lose his power of giving his 
son, who has remained a Hindu, in adoption. But since the 
physical act of giving a son in adoption is accompanied by 
religious ceremonies, such act must be delegated to another 
person who is a Hindu {x). 

This decision is based on the provisions of the Caste Disabilities Removal Act, 18,50. 


(r) Tirkangauda ^fallatigauda v. SInvappa 
PalH (1943) Bom. 700, 45 Bom L.B 992, 
(’44) A.B. 40 ; Apya iShethya v. Ham- 
jiakka Apya (1941) Bora. 350, 19GI.C. 42, 
(’41) A B. 222. 43 Bom. L.Il. 314. 

(a) See N arayanasami 'v . Kuppusavn 11 

Mad. 43 at p. 47. 

(f) Joge^h Chandra v. Nrifyakali (1003) 30 Ca). 
905 ; liaja Mukund Deb v. Sri Jugannath 


(1923) 2 Pat. 469, 72 I.C. 230, (’23) A P. 
423. 

(«) Punchappa v. Sanganbasaxva (1900) 24 Bom. 
89. 

(t>) Puilabai V. Mahadu (1909) 33 Bom. 107, 1 
I.C. 657. 

(w) Baslietiappa v, Shivlingappa (1873) 10 B.K. 
C. 268. 

{x) Shamsing v. iSanfa&at (1901) 25 Bom. 551. 



560 


HINDU LAW. 


Ss. 

478-480 


A BraKmo can give his Brahmo son in adoption. A Brahmo does not cease to do 
a Hindu by becoming a member of the Brahmo Samaj (y). 

479. Mental capacity. — The per, son giving in adoption 
must have attained the age of discretion, and must be of 
soimd mind (z). 

479A. Consent of Government. — It is not necessary to 
validate an adoption that the consent of the Government 
should have been obtained (a). 


III. PERSONS WHO MAY BE LAWFULLY TAKEN IN ADOPTION!" 


480. Wlxo may be adopted. — Subject to the following 
rules, any person who is a Hindu (6), may be taken or given in 
adoption : — 


(1) the person to be adopted must be a male [c ) ; 

(2) he must belong to the same caste as his adopting 
father; thus a Brahman cannot adopt a Kshatriya, 
a "i^aisya or a Sudra ; it is not necessary that he should 
belong to the same sub-division of the caste {d) ; 


(3) he must not be a boy whose mother the adopting 
father could not have legally married (e) ; but in 
Bombay this rule has been restricted in recent cases 
to the daughter's son, sister's son, and mother’s 
sister s son {f). This prohibition , however, does 
not apply to Sudras (g). Even as to the three upper 
classes, it ha.s been held that an adoption, though 
prohibited imder this rule, may be valid, if sanctioned 
by custom (See ‘ custom ' below). 


(3A) A deaf and dumb person cannot be adopted {h). 


{y) Kusum Kinnarx v. Sotya Raman (1003) 30 
Cal. yyo 

( 2 ) Bireswar v Ardha Chander{\SQ2) 19 Cal. 452, 
461. 19 I A. 101, 105-106. 

(a) JiainchandTii V. Sanaji (1871) 7 Bom. H.C. 

(A.C.) 20 , A'arftar v. A'amunji (1ST7) 1 
Bom. 607. 

(b) See as. 0 and 7, and (1903) 30 Cal. 999, supra 

(c) 6'anja6ai V. (1889) 13 Bom 690. 

,((i) SkibDeoy Hu)/i Hrasuit (1924) 46 All 037 
87 I. C 9;i8, ('25)A.A. 79. 

(c) Itlinakshi y. Hamam/da (lb8B) 11 iMatl 49 , 
lihagivan Singh v ishagvan Sinqh (1899) 
21 All. 412, 418, 20 l.A 153, 160; 
Ilandas CJiatterji v. Mamnnlhu. Saih 
Malhh (1937) 2 Cal. 205, 100 1.C 332, 
('30) A.C. 1. 


{/) Jiamc/tandra v. Gopal (1908) 32 Bom. 619 ; 
liamknshna v. {Jhimna]i (1913) 15 Bom. 
L.ll. 824, 21 1.C. 34. 

iy) See s. 635, (1) Raj Koomar v. Bisseisur 
(1884) 10 Cal. 688 ; Lalshmappa v. 

/{umaitt (1875) 12 Bom. H. C. 364-, 
Kahandns v, Juan (1923) 25 Bom. L. B. 
010. 73 I.C. 1023, ('23) U.B. 427 ; Subrao 
Rudha (1928) 62 Bom 497, 113 I.C. 
497, ('28) A. B. 295; Blmi/ivun Singh v. 
Bhagwan .S'm.yA (1899) 21 All 412, 418, 26 
I. A 153, 160 ; f’/imnci v. Vcdda (1876) 
1 "Mad. 62 , Maharaja of Kolhapur v. 

(1925) 48 ilad, 1, 93 I. C. 705, 
(’25) A.M. 497. 

(/t) Surmdra Xatayun Sathhadhikati v. lihola- 
nath Rag Vhamlhi\ (1914) 1 Cal. 139. 



WHO MAY BE ADOPTED. 


661 


(4) there is a difference of opinion between the schools as 
to the age when a boy may be adopted : — 

(i) in Bengal, Benares, Bihar and Orissa, the 
adoption must be before upanayana, that is 
before the boy is invested with the sacred 
thread (i) ; it is immaterial that the adopted 
boy is older than the adopter (j) ; 

(ii) the above rule applies also in the Madras Presi- 
dency ; but if the person to be adopted is of the 
same gotra as the adopter, the adoption may 
be made even after upatiayana, provided it is 
made before marriage (k). Among the Lingayits 
of North Kanara a married man cannot be adopted 
as the law of the Madras Presidency is applicable 
to them (1 ) ; 

(hi) in the Bombay Presidency, a person may be 
adopted at any age, though he may be older 
than the adopter and though he may be married 
and have children (w). 

(5) It has been held iix Madras (n), Nagpur (o) and Allaha- 
bad (p) that the adoption of a married i^erson is not 
valid even among Sudras. 

(jRelalionshi'p of adoi)tive father to yiatural mother : {Sub-section 3). — I'he rule laid down 
in sub-sec. (3) refers to the relationship of the parties prior to marriage (y). It is founded 
upon the fiction “ that the adopting father has begotten the boy upon his natural mother 
therefore it is necessary that she should be a person who might lawfully have been his 
wife.” For this reason a man cannot adopt his daughter’s son, or his sister's son, or 
his mother’s sister’s son, for he cannot marry his daughter, his sister, or his mother's 
sister ; such an adoption cannot be validated by the application of the doctrine oifactiun 
valet (r). If the prohibition referred to above were to be interpreted literally, theie 
would be many other relations incapable of being adopted. But this prohibition has 
been confined in recent oases to the specific cases of the daughter’s son, sister’s son, and 


(i) G’anfira V. /(<?A7iraj (1887) 9 A11.253 328; 
iSrt Raja Makund Deb v. 6'n Jugannath 
(1923) 2 Pat. 409, 72 I.C. 230. ('23) A.P. 
423; ChandTeshu'ur v. JSisheshicar ^920) 
5 Pat. 777, 101 J.C 289, (’27) A.P. Cl; 
Sura Data Den v. Sudhir Kumar Mukfierji 
(1944) 1 Cal. r>60. 

ij) (1920) 5 Vat. 777, 101 I.C. 289, (’27) A P. 
61, .‘lupra. 

(A) Viraragava v Ramalinga (1880) 9 Mad. 148 
IF.B.) ; Pichmaijgan v. Subbayyun (1890) 
13 Mad. 128. 

{1) Datiatraya Maruti \ Laxman JulijypailOil) 
Bom. 584, 203 I.C. 139, (’42) A B 200 
(rn) Balahat v. Mahadu (1924) 48 Boin. 387, SO 
I C. .529, (’24) A.P*. 349 See aNo Dfiannu 
V. Ramkritihna (1880) 30 Bom. 80, G’opa/ 
V. Vishnu (1899) 2.3 Bom 250. 


(«) VUhilinga v. Vijayalhammal (1883) 0 Mad. 
43; Pichmayytin v. Subbayyan (1890) 
13 Mad, 123, 129 , Lingayya v 

Chenqalnmmal (1925) 48 Mad. 407, 89 
I.C. 923, (’25) A M. 272. 

(o) Jlinwti Bai \. Munohar Singh (1945) Nag. 

425, 

(p) Jlmnka v. Xaihii (1913) 35 All. 203, 18 

I.C. 900. 

(<r) SriHimuln v, Ramnyya (1881) 3 Mad. 1.5. 

(r) Bhaywan Singh v. Bhigwan Singh (1899) 
21 All. 412, 20 I.A. 153 ; Waibai v. Hcerbai 
(1910) 31 Bom. 491, 4 I C. 277 rniother’s 
siijter'3 sun cannot be adopted, though lie 
nmy also liappczi to be father’s brother’s 
soul . lahimn Prasad v. Rai 2hu i J^rushad 
(1927) 0 Pat. 500, 100 I. C. 020, (’27) 
A.P, 145. 



562 


HINDU LAW. 


Ss. 

480, 481 


mother’s sister’s son. and it has been hold that it does not extend to other relations. 
It has thus been held that a Hindu may adopt his half-brother (s), his brother’s son’s 
son (<), bis paternal uncle’s son (it), his father’s first cousin (v), his wife’s brother (m), 
his wife’s brother’s son (*), his wife’s sister’s son {y), his father’s sister’s son (z), or his 
daughter’s husband (a). In a Patna ease, where a widow was authorised by her husband 
to take his step-brother in adoption, with liberty to her to adopt another boy if there 
was “ any obstacle to take the step-brother in adoption according to the Shastras,” it 
was held that the “ Shastras” included the Dattaka Mimansa, and since the Dattaka 
Mimansa prohibited the adoption of a step-brother, the widow was justified in not 
adopting him and in adopting another boy, even though the adoption of a step-brother 
was sanctioned by judicial decisions (h). 

A widow adopting to her husband has no larger power than the husband had to 
adopt. Thus she cannot adopt her husband's daughter’s son or his sister's eon or his 
mother’s sister's son, these being persons whom the husband himself could not have 
adopted. At the same time her power of adoption is not less extensive than that of her 
husband. Thus she may adopt her husband’s brother as the husband himself could have 
done (c). Similarly she may adopt her own brother’s son as the husband himself could 
have done. The adoption is not invalid on the ground that she could not have been 
laudully married to her own brother. The rule that no one can be adopted as a son, 
whose mother the adopter could not have legally married docs not apply e coiivtrso (d). 

Custom. — An adoption, though prohibited by the rule laid down in sub-sec, (3), 
may be valid, if recognized by custom. Thus the adoption of a daughter’s son, though 
prohibited by this rule, has been held to be valid among the Deshastha Smartha Brahmans 
.of the Southern Mahratta Country (e). The adoption of a daughter’s son is also recognized 
by custom among Telugu Brahmans in the Madras Presidency (/), and among Khatris 
of Amritsar (</) ; also the adoption of a brother's daughter’s son, a daughter’s son and a 
sister’s sou among Tamil Brahmins (ft) ; of a brother’s daughter's son among South 
Kanara Rajputs (i)i and of a sister's son among the Bhora Brahmans of United 
Provinces (j). 

The basis of the rule being that marriage between agnates is prohibited, wherever the 
basis is ignored in the most prominent cases, namely, the sister's son and the daughter’s 
son, it is submitted that the rule must be regarded as destroyed by the exceptions, in 
all cases where the adop^d boy’s mother is an agnate of the adopter. 

Factum rafeh— See notes under the same head to sec. 434 above. 

481. Only son. — An only son may be given and taken 
in adoption (k). 

Faclum vaU.t.-^See notes under the same head to sec. 434 above. 


(s) Gajanaii v. Kas-hi7iath (iOlo) 3t> Bom 410 
28 I.C. 978, (’lo) A.B. 99. 

{t) Ilaran Cfiunder "V. Ilurro {1881) Q Ch] 41. 

(u) Virayya v, Uanummita (1891) 14 51,1(1. 459. 

(v) 5I(i»apptt V Ganqaia (1919) 43 Bom 209 

49IC’. 517. (’19>AB, 85. 

(w) liuie Bhudr v. lioopshunkur (1823) 2 Bor 

K. G5G. 

(jr) Sri Uamidii v, Jliunayya (1881) 3 Mad. 15. 
(j/) l{a<javendTa v. jayaram (J897) 20 5Iad. 283* 
(2) liavikruhna v. Clntnnaji (1913) 15 Bom L 
K. 824, 21 I.C. 34. 

(fl) Silnbai V. Panatihai (1923) 47 Bom 35 
69 I C. 172, (*22) A B. 239. 

(5) Rajendra Prasad v. Gopal Prasad (1926) 
7 Pat. 24.5, l08 I.C. 545, ('29) A.P. 51. 

(c) Shripad v. 49 Bom. C15 89 1 C 

397, (’25) A B. 399. ' ' 

(d) Bai Nani v. Chumlal (1898) 22 Bom. 978- 

Jax Singh v. Bxjax Pal (1905) 27 All. 417 ’ 


/ nini JM V. purbali Kunmir (1915) 
42 l.A. 155, 37 All 359, 29 I.C. 617, 
(’15) A. P('. 1.7. 

(e) Sundnibai v. Jfanmant Guriialh fl032) 56 
Bom. 293, 140 I C. 235, (’32j A.B. 308. 
(/) I isicasunduru v Soimsundara (1920) 43 
5Iad. 870, 59 I.C. 009, (’20) A.5I 451. 

{g) Parnvinandy.Shi' Charan (1921) 2 Lah 69 
59 I C 250, (*21) A.L. 147 : lioshen Lai 
V 6’tfwur Nath (1938) Lah. 173, (’37) A.L. 
626 

(A) Vayidinada v. Appu (1880) 0 Mad 44 
(t/ Soorutha v Kanaka (1920) 43 3Iad 867 
50 I C. 585. (’20) A.M. 648 
IP Bam v. Parhati (18Q2) 14 All. 53. 

{k) Sr% Batusn Gnrulwyasuattiv v, Srx Balusu 
Ramalakshrnamma (1890) 22 Mad. 398 26 
l.A. 113 , Vyas v. Vyas (1900) 24 Bom. 
367; Krishna v. l^aranishri (1901) 26 
Bom 537. 



WHO MAY BE ADOPTED. 


563 


482. Orphan. — The adoption of an orphan is not valid {1), 
except by custom (m). 

The reason of the rule is that a boy oan be given in adoption only by his father or his 
mother, which cannot be done in the caae of an orphan. The doctrine of Faclum valet 
cannot be invoked to validate such an adopton (n). 


483. Stranger. — A stranger may be adopted though 
there are ne ar relations (o). 

vatH^See notes under the same head to sec. 434 above. 



484. Adoption of same hoy by two persons. — Two persons 
cannot adopt the same boy, even if the persons adopting are 
brothers. In such a case, the adoption by each of them is 
invalid (p). 


485. Simultaneous adoptions. — The simultaneous adoption 
of two or more persons is invalid as to all (q). 


Ss. 

482^6 


lllualration. 

A has two wives, B and C, but has no sou. A being desirous to give a son to each 
of them authorizes them to adopt two sons simultaneously, one to be adopted by B and 
the other by C. The authority to adopt is invalid, and the adoptions (if any) made 
pursuant to such authority are also invalid. 

Sastri G. Sarkar does not approve of these decisions, and observes in his work on 
Hindu law that notwithstanding these decisions such adoptions are made and recognized 
by Hindu society. As to successive adoptions, see see. 4(58. 

/ 

486. Dvyamushyayana or son of two fathers. — (i) Where 
a person gives his son to another under an agreement that 
he should be considered to be the son of both the natural 
and adoptive fathers, the son so given in adoption is called 
“ dvyamushyayana.” 

(2) A dvyamushyayana inherits both in his natural 
and adoptitve families \r). In the case of a person adopted 
in the nitya dvyamushyayana form (which depends on the 


(0 Basheliapa v. Shiilingappa (1873) 10 Bom 

H. C. 208; Vaithilingam v. A'afesa (1914) 
37 Mad 529, 15 I.C. 299, ('14) A.M 460, 
Maret/j/a v. Ramalakshmi (1921) 44 Mad, 
200, 00 I.C. 141, (’21) A.M. 331. 

(m) Ramkishore v. Jainarayan (1921) 48 I.A. 
405, 49 Cal. 120, 64 I.C. 782, (’22) A.PC. 
2 [Dhusars of the Punjab] ; Parsholtam v. 
FmicAttttd(1921) 45 Bora. 754, 61 I.C. 492, 
(’21) A.B. 147 [Jains o! Idar State]; 
Siikhlir V. Manqdsar (1927) 49 All. 302, 
100 I.C. 778, (’27) A.A. 252 [Jaqir situated 
in Gwaliorl ; Kxinivar Basant Sintjh v. 
Kumvar Brij Baj Saran Singh (1935)62 

I. A. 180, 57 All. 494, 37 Bom. L II. S05, 
156 I C. 864, (’35) A.PC. 132 (Jats of 
Ballab(?arh]. 


(n) (1921) 44 Mad. 260, 60 1 C. 141, (’21) A.M. 

331, supra. 

(o) Srimati Oonui v. Gokoolamind (1878) 3 Cal. 

587, 5 I.A. 40 ; Dharma v. Ramkrishna 
(1886) 10 Bom. 80. 

{p) Ra} Goomar v. Bissessur (1884) 10 Cnl. 688, 
C9G-97. 

(7) Akhoy Chnnder v. Kalapahar (1880) 12 Cal 
406, 12 I.A. 198, Surexxdrakeshav v. 
JDoorgasundari (1892) 19 Cai. 513, 19 I.A. 
103. 

(r) SrinMti Ooma v. Gokoolayiund (1878) 3 Cnl. 
587, 598, 5 f.A. 40. 50-.U ; Krishna 
V. Paramshn (1001) 25 Bom. 537 ; Behan 
Lai V. Shxh Lai ( 1904) 26 All. 472. 



564 


HINDU LAW. 


Ss. 

486,487 


stipulation and not on the ceremonies) his sons born after the 
adoption are entitled to participate in the inheritance of the 
adopter (s). 

As to succession to a Dvyamushyayana son, see sec. 43 (7). 

(o) ^\T.iere a person gives his only son in adoption to his 
brother, the adoption mtist be presumed to be in the dvyamush- 
yayana form, unless a stipulation is proved that the adoption 
was to be in the ordinary form. In Bombay, however, it has 
been held that there is no such presumption, and that a person 
alleging that an adoption was in the dvyamushyayana form 
must prove that there was an agreement to that effect, even 
if the person adopted was the only son of a brother (^). 

The proposition in sub-sec. (3) is supported by certain observations in Mayno's Hindu 
Law, flth cd., see. 145, Sarkar's Hindu Law, .5th ed., p. 226, Tagore Lectures for 1888 
on Adoption, p. 302, Strange's Hindu Law, vol. 1, p. 80. In the Bombay Presidency, 
however, where the Courts are guided in questions of adoption by the Mitakshara and 
the Vyavahara Mayukha supplemented by the Dattaka Miman.sa and the Dattaka 
Chandrika, it has been held that in every case of a dvyamnshyayana adoption, there 
must be an agreement to that effect, and that such agreement must be proved as much 
in the case of the adoption of an only son of a brother as in any other case. 

(4) Where a dvyamushyayana dies his property is taken 
jointly and equally by the adoptive mother and natural mother, 
if, after this, the adoptive mother adopts another son the 
natural mother is not dive.sted of the property inherited (w), 

487. Adoption of daughters by naikins (dancing girls.)— 
According to the Bombay and Calcutta decisions, the adoption 
of a daughter by a naikin or dancing girl is invalid notwith- 
standing a custom to the contrary, such custom being regarded 
as inunoral {v). According to the Madras decisions, it is 
valid, provided the adoption is not made with the object 
of disposing of the girl for the purposes of prostitution [w). 
Even two girls may be adopted provided the practice is sanc- 
tioned by custom {x). 


(s) (Jnnpnirao Shnpitirao \ Jiulkrishna Giirurao 

(]‘)4J) Bom. 340, 201 I.C. C33, ('42) A B. 
103. 44 Bom. L K. 333. 

(t) Larvnpalirao v. Venknfegh (1917) 41 Bom. 

316, 38 I.C. 652, ('IG) A.B. G8; Hnehrao 
Bhiimrao (1018) 42 Bom. 277, 44 1 C 
851, (’17) A.B. 10. 

(h) Kanlawa y. Sanganyoicda (1942) Bom. 303, 
20 I.C. 633, (*42) A.B 193, 44 Bom. 
L.ll. 267. 

(r) Mathura v. (1880) 4 Bom. 545 ; Uira v. 
Radha (1913) 37 Bom. 116, 17 I.C. 834, 


Ilencower v. //a7isro2tgr (1818) 2 Mori. Dig. 
133 ; Ghusiti v. Vmrao Jan (1893) 20 I. A. 
193, 201-202. But sec Manjamma v 
Sheshayirirao (1902) 26 Bom. 491, 496, 
wlicre the adoption was by a prostitute, 
wlio was not a naikin attached to any 
temple. 

(«j) Venku v. MaJutlinga (1888) 11 Mad. 393 ; 
Muttukannu v. Paramasai/tmi (1889) 12 
Mad. 214. But see Guddali v, Gnnapati 
(1912) 23 Mad. L.J. 493, 17 I.C. 422. 

(z) Ganrjamma v. Euppammal (1938) Mad. 789. 



ADOPTION CEREMONY. 


565 


IV. ACT OF ADOPTION AND CEREMONIES INCIDENTAL TO IT. 

488. Ceremonies relating to adoption. — (2) The ceremonies 
relating to an adoption are — 

^a) the physical act of giving and receiving, with intent 
to transfer the boy from one family into another 
[s. 489]; 

(b) the daiia homam , that is, oblations of clarified butter 
to fire [s. 490] ; and 

(c) other minor ceremonies, such as futresh jag (sacrifice 
for male issue). 

{2) The physical act of giving and receiving is esseyitial 
to the validity of an adoption [s. 489], 

As to datta homam it is not settled whether its performance 
is essential to the validity of an adoption in every case [s. 490]. 

As to the other minor ceremonies, their performance is 
not necessary to the validity of an adoption {y). 

(3) No religious ceremonies, not even datta homam. are 
necessary in the case of Sudxas (z). Nor are any religious 
ceremonies necessary amongst Jains (a) or in the Pimjab (6). 

489. Giving and receiving. — (J) The physical act of 
giving and receiving is absolutely necessary to the validity 
of an adoption. This is so not only in the case of the twice 
born classes, but also in the case of Sudras (c). It is of the 
essence of adoption, and the law does not accept any substitute 
for it. Mere expression of consent, or the execution of a deed of 
adoption, though registered, but not accompanied by an actual 
delivery of the boy, does not operate as a valid adoption [d). 
To constitute giving and taking in adoption aU that is necessary 
is that there should be some overt act to signify the delivery 
of the boy from one family to another (e). 


iy) Sheolotan v, Bhir^in (1917) 2 Pat. L.J. 481, 
41 I.C. 375, (’17) A.P. 033 ; Rctki v. Lak 
Pati (1915) 20 C.W.X. 19, 27 I.C. 39, (’15) 
A.C. 214 ; Raja Makwid Deb v SriJagan- 
nath (1923) 2 Pat. 469, 482, 72 I.C. 230, 
(’23) A.P. 423 ; Slohon v. yirode 

ilTofton (1916) 20 C. W. N. 901, 35 I.C. 127, 
(’17) A.C. 292 

(z) Shoshinatk v. Kmhnasunderi (1881) 6 Cal. 
381, 388, 7 I. A. 250, 255; Jyidromotii v. 
Behanlal (1880) 5 Cal. 770, 7 I.A. 24 ; Bal 
GangaUhar Txlak v . <S'ftn7iira« (1915) 42 I.A. 
135, 151. 39 Bom. 441. 446, 29 I C. 639, 
(’15) A.PC. 7 ; (1916) 29 C.'W.N. 901,35I.C. 
127, (’17) A.C. 292j supra (putresii jag 
cereraoDyJ. 


(а) Lakshmi Chand v. (joWc)Bai{1886) 8 All. 319. 

(б) Tapper’s “ Punjab Customary vol.iii, 

p 82. 

(c) (1881) 6 Cal. 381, 7 I.A. 250 ; supra ; 
HanganayakamTna v. Alivar (J890) 13 
Mad. 214; Bireiihivar v. Ardha {1892) 
19 Cal. 452, 19 I A. 101 ; Balak Rum v. 
A^anun Hal (1930) 11 Lah. ^03, 128 
I.C. 532, (’30) A.L. 579. 

(rf) Shoshinatk v. Krishjiastinderi (1881) 6 Cal, 
381, 388, 7 I.A. 250; Sreenaram v. 
SreemHtty (1873) 11 Beng. L. K. 171, 
I.A, Sup, Vol. 149. 

(t) Harolt V. Radhabai (1944) Nos. 795. 


Se. 

488,489 



566 


HINDU LAW. 


Ss. 

489,490 


(2) The power (or riqht) to give a son in adoption cannot 
be delegated to any person (/) ; but the father or mother 
may authorize another person to perform the physical act of 
giving a son in adoption to a named person [g) and can delegate 
someone to accept the child in adoption on his or on her 
behalf (h) [s. 477]. 


490. Datta homam. — (7) Batta homarn is not essential in 
the case of an adoption in the twice'born classes when the 
adopted son belongs to the same gotra as the adoptive father (i). 
There is a conflict of opinion whether in other cases datta 
homam is necessary. In Madras it was held in Singamyna v. 
Venkatacharhi (j), a case decided in 1868, that neither datta 
homam nor any other religious ceremony was necessary even 
among Brahmans. This decision was followed in a later 
case where the parties were Kshatryas [h), and in another case 
in which the parties were Nambudri Brahmans {1). The ruling 
in Singamma's case was, however, doubted by the same High 
Court in the under-mentioned cases (m). It is now held that 
datta homam is not necessary for the adoption of a daughter’s 
son (n). In an Allahabad case, where the parties were Dakhani 
Brahmans, it was held that when the boy was the son of a 
daughter or of a brother, mere giving and taking was 
sufficient (o). In Bombay, it has been held that Datta homam is 
necessary {p). The Judicial Committee has not expressed any 
definite opinion on the question, but there is some indication 
of an inclination towards the view that datta homam is 
necessary {q). 


[2) The datta homam may be performed at any time after 
the' physical act of giving and receiving ; it may be performed 


(/) V. (1873) 10 Horn H.C 

241 , Bafshetuippa v. Bfaihntjappa (1873) 
10 Bom. H.C. 208. 

{g) Jamnabai v. Ilaychand (1883) 7 Bom. 225; 
Hhauising v. iS'c/«ta(/a4 (1001) 25 Bom. 551, 

ih) Behara Vvjliamma v. Ayyagan Veera Venkata 
Sniya hv njaprakanh Kao (1042) Mad. 008, 
(’42) A. M 379. 

(i) Valnbai v. Guvind (1000) 24 Bom, 218 ; Bal 
O'unqadfiar Txlak. v. J'anrfif(]915) 

42 l.A 135, 39 Bom. 441, 20 J C. 630, 
(’1.5) A PC. 7 , (ioimdayyar v. Dorasami 
(18H8) 11 Mad. 5 [F.B ] , (1915) 20 C.M.N 
19, 27 T.C. 39, (’15) A C 214 . Vedaielli 
V. Mangatnma (1904) 27 Mad 538, 539. 

(;) (1808) 4 Mad. H C. 105. 

{1) Chajulra Mala v. Mukta Mala (1883) 6 
Mad. 20. 

(I) Shankaraii v. (1892) 15 Mad. 7. 


(m) Vcnicatu v. Subhadra (1884) 7 Mad. 548 ; 
(jOixndamjar v. Dorasami (1888) 11 Mad. 
5, 9-10 [I'.B.]; llanganayakamma v. Alicar 
(1890) 13 Mad. 214, 220 (Valsyas) ; 
fiabbarayar .8 (1898) 21 Mad. 
497. 

(«) Bamxnatha v. Vageesan (1940) Mad. 98, 18o 
/.C. 37, (’39) A.M. 849 

(o) Alimram v. Madho Rao (1884) 6 All. 276 

{p) (Joiindprasad v. Rindabai (1925) 49 Bom. 
o\5, 87 I.C. 472, (’25) A.B. 289 [Kanoj 
BtahTnans], 

iq) ShoBhinatk v. Krishnasunderi (1881) 0 Cal. 
38l, 383, 7 l.A. 250, 255 ; Bal Uangudhar 
Tilak V. Shnniias Pandit (1915) 42 l.A, 
13.5, 149-150, 39 Boin. 441, 29 I C. 630 
(’15) A. VC. 7. 



ADOPTION CEREMONY. 


567 


even after the death of the adoptive father (r), or of the natural 
father of the boy (s). 

(3) The ceremony of datta homam may be performed by 
the parties who give and receive the boy in adoption, or the 
performance thereof may be delegated by them to others {t). 

Bcittfi homam. — Datta, homam Is the sacrifice of the burning of clarified butter, which 
is offered as a sacrifice by fire by way of religious propitiation or oblation (u). 

Pollution . — It follows from sub-section (3), that pollution on account of the death or 
birth of a relation does not invalidate an adoption made during the period of such pollu- 
tion. The secular formalities of giving and receiving may be j)ei'formed by the adopter, 
though he may be in a state of pollution, while the religious jp^rt of the ceremony may 
be delegated to a priest or to a relation fi:ee from impurity. Kven the physical act of 
giving in adoption may be delegated to another person. But the right or the power to 
give in adoption can be exercised only by the father or the mother, and cannot be delegated 
to any person. 

491. Free consent. — (1) Every valid adoption implies the 
free consent to the adoption of the person giving and the 
person receiving in adoption, and also, it seems, of the person 
adopted, if he is a major at the date of adoption (v). 

(2) Where the consent to an adoption is obtained by mis- 
representation coercion, fraud, imdue influence, or mistake, the 
consent is not free, and the adoption is voidable at the option 
of the party whose consent was so obtained {w). But it may 
be ratified by such party, provided the ratification does not 
prejudice the rights of other persons {x). 

492. Consideration for adoption. — An adoption is not 
invalid merely because the person giving in adoption receives 
a consideration for the adoption from the person taking in 
adoption, though the promise to pay cannot be enforced iu 
law iy). 


(r) (1898) 21 Mad 497, supra ; SeciharaiTtamma 
V. Surya.narayana (1926) 49 Mad, 969, 67 
I.C. 615, (’26) A.M. 1184; Chin Ana 
Mulha Ayyangar v. Thiravengadammal 
(1942) Mad, 682, 204 I.C. 393, 42 A.M. 
595. 

is) Venkata V. Subliadra (1884) 7 Mad. 548' 
550. 

(0 Lakshmibai v. 'Ranxchandra (1898) 22 Bora. 
590 ; Santappayya v, Rangappayya (1895) 
18 Mad. 397. 

(u) Bal Gangadliar Tilak v. Shriniras Pandit 

(1915) 42 I.A. 135, 148, 39 Bom, 441, 463, 
29 I.C. 639, 7. 

(v) Slrcar’8 “ Law/oltAdoption,*' 2nd Ed,, pp. 

279, 280 . Strange s Hindu Law, vol. i, p.88. 


{w) i?«y«/>ai V. Ba/tt (1870) 7 Bom. H. C. App 1 
Rantjanayakamma v. Aiwa (1890) 13 

Mud. 21 1, 220-224, Somasekhara v. 

Sitbftadramaji (1882) 6 Bom. 524; Sri 
Rajah Venkata v. Sr\ Rajah Rangayya 
(190G) 29 Mad. 437 ; Shri Sxtaram v. Shri 
Barihar (1911) 35 Bom. 169, 179-180, 8 
I.C. 625. See also Eshan Kxshor'/. Bant- 
Chandra (1874) 13 Beng. L.B.. App. 42. 

(x) Sri Rajah Venkata v. Sri Rajah Rangayya 

(1906) 29 Mad. 437 ; contra Satiirajn v. 
Venkata'^wami (1917) 40 Mad. 925, 930, 
936-937, 40 I.C. 518, (’18) A.M. 1072. 

(y) Murayappa v. Nagappa(1906) 29 Mad. 161 ; 

Rarayan Gopalrao (1922) 46 Bom. 908, 
67 I.C. 850, (’22) A.B. 382. 


Ss. 

490-492 



568 


HINDU LAW. 


8 . 493 . Adoption cannot be cancelled : renunciation by adopted 

493, 494 son of right of inheritance. — A valid adoption once made cannot 
be cancelled by the adoptive father{z) or other parties thereto, 
nor can the adopted son renoiince his status as such and return 
to his family of birth. But there is nothing to prevent him 
from renouncing his right of inheritance in the adoptive family, 
in which case the mheritance would go to the next heir (a). 

V.— SESULTS OF DATTAK ADOPTION. 

494 . Results of adoption. — (i) Adoption has the effect 
of transferring the adopted boy from his natural family into 
the adoptive family. It confers upon the adoptee the same 
rights and privileges in the family of the adopter as the legiti- 
mate son, except in a few cases. Those cases relate to marriage 
and adoption, [sub-sec. (<3) below] and to the share on a partition 
between an adopted and an after-born son (6) [s. 497], 

(2) But while the adopted son acquires the rights of a 
son in the adoptive family, he loses all the rights of a son in 
his natural family mcluding the right of claiming any share in 
the estate of his natural father or natural relations or any share 
in the coparcenary property of his natural family. This 
follows from a text of Manu (Adhyaya, verse 142) which is as 
follows ; — 

“ An adopted son shall never take the family (name) 
and the estate of Ms natural father; the funeral cake follows 
the family (name) and the estate ; the funeral offerings of him 
who gives (his son in adoption) cease ( as far as that son is 
concerned).” 

Adoption does not under the Bengal School of Hindu Law 
(Dayabhaga law) divest any property which has vested in the 
adopted son by mheritance, gift, or under any power of self- 
acquisition prior to his adoption (c). 

As regards cases governed by the Mitakshara law, it has 
been held by the Madras High Court, that an adoption does not 
divest any property which has vested in the adopted son previous 

(z) BhoopuDii Saih Chahrahaifi \. Ba'icnta i lb) Pratap'^infjk A'/arsinrjji ilil A. 'dJ, 

KumuTce. Del pS(j) AX’ ' lu iinm ttu -uti' a iu- kio. 

(a) Dutee Bfiudr \. llQop^lttfithtr (1824) 2 llor. 
lieu Old . Lal^hntap/ia v Jlatmua (lH7r>) 

12 Bom ir (■ fA f ) 3<)I. 3S<s , 

V, (IHUo) IJ) ]>om 23!). Lmdiirn 

V. Ihrv (1930) '>7 l.il 1322, 130 I C 
250,(’31) A.C.210. 


iYa./iH{(a«v /ioo(19l(i) 43 I A.50, 07-U8, 
40 Bom 270, 287'288, 32 I C. 403, (’15) 
ABU. 41. 

(f) Behan Lai v. (1800) 1. C W. 

N. 121 ; Srichatan ^929) 

Cal 113:>. 120 I r¥Tn7. A. C. 337 




KESULTS OF ADOPTION. 


569 


to the adoption ; it has accordingly been held by that Court 
that where coparcenary property has already vested in a person 
as the sole surviving coparcener, and such person is subsequently 
adopted into another family, he does not, by adoption, lose 
his rights in that property (d). Following this decision it has 
been held by the Bombay High Court that a Hindu does not, 
on his adoption, lose the share which he has already obtained 
on partition from his natural father and brothers imhis family 
of birth, the reason given being that such share cannot be said 
to be “the estate of his natural father” within the meaning 
of the above text (c). But it has been held by the same High 
Court that where property has vested in a person as the heir 
of his father, and such person is subsequently adopted into 
another family, he loses by adoption his rights in that property, 
that property being “ the estate of his natural father” (/). 

(<3) Though adoption has the effect of removing the 
adopted son from his natural family mto the adoptive family, 
it does not sever the tie of blood between him and the members 
of his natural family. He cannot, therefore, marry in his 
natural family within the prohibited degree, nor cati he adopt 
from that family a boy whom he could not have adopted if 
he had remained in that family {g). 

(4) The only cases in which an adopted son is not entitled 

to the full rights of a natural-born son are — (1) where a son 
is born to the adoptive father after the adoption, and (2) 
where he has been adopted by a disqualified heir. The first, 
of these cases is dealt wuth in sec. 497 below, and the second in 
sec. 102 aboye^ , _ - — — ~ ■ 

(5) Where a married person is given in adoption and such 
person has a son at the date of adoption, the son does not 
like his father lose the gotra and right of inheritance in the 
family of his birth, and does not acquire the gotra and right of 
inheritance in the family into ivhich his father is adopted. The 
wife passes with her husband into the adoptive family because 
according to the Shastras husband and wife form one body (h). 
In such a case if the husband dies the wife cannot adopt her son, 


(<J) 

u) 


Venkata Narsimha 
20 Mad. 437. 
Makableehivar 
Bom. 642, 
Manikbai 
620, 87 I. G 


jfllK 

V 


V. Rangayya (1900) 


^amanya (1023) 47 
\9, (’23) A. B. 297 ; 

(1925) 49 Bora. 
fA. B. 303. 


(/) Dattatraya v. Gorind (1916) 40 Bora. 429, 
34 I. C. 423, ('16) A.B. 210. 

(g) JHoolia V. Uppon (1858) Mad. S. B. 117. 

(A) Kalgatda v. Somappa (1009) 33 Bom. 609, 
3 I.C. 809. 


S.4M 



570 


HINDU LAW. 


S». because sbe bas lost tbe power to give and she cannot be both 
494>-49S giver and taker {i). But it has been held that when a married 
Hindu is given in adoption and at the time of adoption his wife 
is pregnant, and a son is born to him, the son on his birth passes 
into the adoptive family and is entitled to inherit in that family, 
the reason given being that such a son is born into the adoptive 
familj’ and should therefore be treated as a member of that 
family (j). 

Illuairations. 

(a) A lias two sons B and C. A gives C in adoption to X. C is not entitled to 
inherit to A as his son. 

(b) A and B, two brothers, and their respective sons, C and D, are members of 
a joint family. A gives his sou C in adoption to X. C loses all his rights as a coparcener 
in his natural family. The coparcenary which consisted of four members before the 
adoption will be reduced after C'.s adoption to a coparcenary of three members only. 

(c) A and his son C are members of an undivided family. A dies, and on his death 
C becomes entitled to the whole of the coparcenary property as sole surviibig coparcener. 
C's mother then gives C in adoption to X. C does not, by adoption, lose his rights in 
that property. 

495. Succession ex-parte patema.— Subject to the provi- 
sions of sec. 497, an adopted son is entitled to inherit in 
the adoptive family as fully as if he were a natural-born son, 
both in the paternal and in the maternal line. He is entitled 
to inherit to his adoptive father, and to the father and grand- 
father and other more distant lineal ancestors of the adoptive 
father. He is also entitled to inherit to the adoptive father’s 
brothers, the adoptive father’s brother’s sons and other collateral 
relations (fc). And conversely, the adoptive father and his rela- 
tions are entitled to inherit to the adopted boy as if he were 
a son born in the adoptive family. 

A adopts H in conjunction with his wife B. After B's death A marries C by whom 
he has a son Q born to him. After C's death, A marries D ; there is no issue of this 
marriage. A then dies leaving //, G and D. Subsecjucntly D dies leaving atridhana. 
"Who is entitled to D'a stridliana? U and G as the sapindas of A are entitled in equal 
shares (1) [sec. 147]. 


496. Succession ex-parte matema.— (i) An adopted son 
is entitled to inherit to his adoptive mother and her relations, 
as, for instance, her father and brothers. And, conversely, 


({) Sharat Cfiandra v. Sfianta Bai (1945) Ifaj;. 
344. 

(j) Advi V. Fakirappa (1918) 42 Bom. 547, 4ft 
I.C. 644, ('18) A. B. 168. 

(fc) Padima Kuman v. Court of Wards (18S2) 8 


Cal. 302. 8 I. A 229 ; Cfivndreshtcar v. 
m»hethn'ar 5 Hat . 777, 101 I. C. 

209, (’27) 

(0 Cangadhar (1916) 43 Cal. 944, 

34 I.C. 


(1916) 43 Cal. 944, 
575. 



RESULTS OF ADOPTION. 


571 


the adoptive mother and her relations are entitled to inherit 
to him (m). 

(2) Even if the wife of the adopter was dead at the date 
of adoption, the adopted son becomes her son by virtue of the 
adoption, and is entitled as such to inherit to the relations in 
her father’s family (n). An adoption by a Hindu widower being 
valid, the adoption will take etfect as if the son had been adopted 
in the life time of the deceased wife of the adoptive father. 
The adopted son will divest all estates which had vested before 
the adoption on the death of the adoptive mother by reversion 
to her parent’s family being Stridhanam property which she 
had inherited. An alleged custom that such a reverter 
would exclude a son adopted after the wife’s death .w^s 
not estabhshed (o'). 

(3) Where a Hindu, having two or more wives, makes an 
adoption in conjunction with one of them specially sele,<^ted for 
the purpose, the wife so selected ranks as the adoptiW mother, 
and the other wives as mere step-mothers. ThaXK)pted son 
inherits only to the adoptive mother and to her relations, and 
she alone and her relations can inherit to him. The same prin- 
ciple applies when an adoption is made by one of several widows 
in pursuance of an authority left to her alone (p). In other 
cases, it is not settled Avhether the adopted son mherits to all 
the wives of the adoptive father and their relations (q). 

Illusiralion. 

Ay who has two wives B and C, adopts a son D in conjunction with his wife B. A 
dies, and on his death D succeeds to his estate. D then dies unmarried. B is entitled 
to inherit to D as his mother to the entire exclusion of (7 : Annapurni v. Forbes (1900) 
23 Mad. 1, 20 T. A. 246. 

^ 497. Son born after adoption. — (1) The statement of law 

in the above sections that an adopted son is entitled to inherit 
just as if he were a natural-born son, is subject to the exception 
mentioned below : — 


Where a son is born after adoption to the adoptive father, 
(a) the adopted son does not, on a partition between him and 


fm) Kali Kotnul v. Unia Shunker (1884) 10 Cal. 
232, 10 I. A 138 ; Radha Pra>iad v. Ranee 
Mani (1906) 33 Cal, 947 ; Daltatrai/a v, 
Qangabai (1922) 46 Bom. 541, 77 I. C. 
17, (’22) A. B. 321 ; Sowntharapandian 
Ayyanqar v. Periaocm Thetan (i033) 66 
Mad. 759. 145 I.C, 534, (’33) A.M. 600. 


(7j) Sundaramnui V . (1920) 49 Jdad. 

941, 97 I. C. 145. (’26) A. M. 1203. 
io) Siibramaniam v. Mxiihxah Cheitxar (1945) 
Mad. 638. 

(p) Annnpuram v. Forbes (1800) 23 Mad. 1, 26 
I.A. 246. 

(j) Mayne’s Hindu Law, s. 167. 


Ss. 

496, 497 



672 


HINDU LAW. 


S*. the after-born natural son, share equally with him as he would 
^ 7, 498 have done if he were a natural son, but be takes — 

(1) in Bengal, one-third of the adoptive father’s estate ; 

(2) in Benares, one-fourth of the estate ; and 

(3) in the Bombay and IMadras Presidencies, one-fifth of 
the estate (r) ; and 

(b) if the estate is impartible, the aurasa son alone succeeds 
to it (s). 

Except as aforesaid an adopted son is entitled to the same 
share as a legitimate son [ill. (b)]. 

(2) Among Sudras in Madras and Bengal, an adopted 
son shares equally with the after-born natural son {t ) ; in 
Bombay, he takes one-fifth of the estate (u). 

(3) The same rules apply on a partition in the life-time 
of the father. Thus in Madras the father and the after-born 
natural son will each take four shares and the adopted son one 
share in the whole estate. 


JUusfrat'tons. 

(a) A, 0 , childless Hindu, adopts a son B. A son C is then born to ^1. A dies 
leaving property worth Rs. 3,000. In Bengal, B would take Rs. 1,000 and C Rs. 2,000 
In Benares B would take Ks. 750. and 0 Rs. 2,250. In Bombay and Madras, B would 
take Rs. 000, and C Rs. 2,400. 

(b) A and B are two brothers. A has a son C. B, who has no son, adopts D. The 
parties are all members of a joint family governed by the iMitakshara law'. After the 
death of A and B, D sues C for a partition. D is entitled to a share equal to that taken 
by C, that is, D’a adoptive father’ .s brother's son ; Kagindas v. Bachoo (1915) 43 I. A. 
56, 40 Bom. 270, .32 I. 0. 40.3, (’15) ,A.PC. 41, overruling the Calcutta and Bombay 
decisions noted below (v), where it was hehl that D was entitled not to a share equal 
to that taken by C, but to the smaller shares as if C w'as au after-born son. 

498. Eights of adopted son in separate property.— Power of 
adoptive father to dispose of separate property . — {!) A Hindu 
adopting a sou does not thereby deprive himself of the power 
he has to dispose of his separate property by gift or will. 
There is no implied contract on the part of the adoptive 


(f) Oxriapa ifingapa (1893) 17 Bom. 100 ; 
Ayyatu v. miadoichi (1862) 1 Mad. II. C. 
45, 

(8) Sahebgouday. >Shiddangouda(lQ3Q)'Bom.3lA . 
(i) Ferraiu v. Subbarayadu (1921) 48 I.A. 280, 
44 Mod. 656, 01 I.C. 690. ('22) A.PC. 71 ; 
Asita V, liirodf. (1916) 20 C. W. N. 901, 
35 i. C. 127, (’17) A. C. 202. 


(m) Tukaram v. liamchandTaCi^i^) 49 Bora. 672, 
89 I. U. 984, (’25) A. B. 425. 

(c) Etighubanund Doss v. Sadhu Churn (1879) 
4 Cal. 425 . Barhoo v. Nagindus (1914) 16 
Bom. L.R. 263, 23 I.(’. 912, (’14) A.B 38. 
Seoaho/faja v. Suhbaraya (1888) 7 Mad. 
523. 



EESULTS OF ADOPTION. 


573 


father, in consideration of the gift of his son by the natural 
father, that he will not dispose of his property by gift or will (mj). 

(2) An adopted son does not stand in a better position, 
with regard to the separate property of his adoptive father, 
than a natural born son ; and there is nothing in the Hindu 
law to prevent a father from disposing of by will his separate 
property, and so defeating the rights by inheritance of his 
son (x). But where the boy is given in adoption under an 
express agreement that the adoptive father shall not dispose 
of his property to the prejudice of the adopted son, the adoptive 
father cannot dispose of the property to the boy’s prejudice (^). 

(3) An alienation by way of gift by the adoptive father 
of his separate property prior to the adoption is binding on 
the adopted son ( 2 :). 

The will of a Hindu disposmg of his separate property 
is not revoked by the subsequent adoption of a son by him (a). 
Where a Hindu disposes of his separate property by will, 
and an adoption is made to him by his widow after his death, 
the disposition by will is not affected by the adoption, for the 
will speaks as at the death of the testator, and the property 
is carried away before the adoption takes place (6). The 
adopted son takes subject to the provisions of the wull (c). 

Thia section applies also to property held by a father in Bengal, he having an absolute 
power to dispose of his property, whether ancestral or self-acquired [s. 27-1]. 

499. Eights of adopted son in coparcenary property. — (J) 
An alienation of coparcenary property, valid when it was 
made, is binding upon a son adopted after the date of alienation 
[s. 270 (3)] (d). 

In provinces referred to in sec. 268, an alienation by a 
coparcener of his share in the coparcenary property made 
without legal necessity or in excess of his interest in the 
coparcenary property, is binding upon a coparcener adopted 
after the date of the alienation (e). 


(w) Sri Raia Venkata Surpa v. Court of Wards 
(1939) 22 Mad. 383, 20 1. A. 83 , Surrendra- 
nath V. Kala Chand (1907) 12 C.W.N. 
668; Pursholam v. Vasudev (1871) 8 
Bom. H. C. O.C. 196. 

{x) Purekoiam v. Vasudeo(l87l) 8 Bom, H. C. O. 
C. 1908 • Subba Reddi v. Doraisami (1907) 
30 Mad. 369. . 

(y) Surendrakeshao v. Doorijamndari (1802) 
19 Cal. 513, 588, 19 I.A. 108, 132. 

(«) See Kalyanasundaram v. Karuppa (1927) 
64 I.A. 89, 50 Mad. 193, 100 l.C. 105, ('27) 
A.FC. 42 [Kift beiore adoption]. 


(а) See Vinaynk v. Govindrav (1869) C Bora. H. 

C, 224, 229. 

(б) Krishnamurthi v. Kriahnamurthi (1927) 54 

I A. 248, 262, 50 Mad. 508, 518, 101 
l.C. 779, (’27) A.HC. 139. 

(c) Venkalanara’!tntba v. Subba Rao (1923) 
46 Mad. 300, 73 I C. 991, (’23) A.M 376. 
_ (rf) Veeranna v. Sayajnma (1929) ,52 Mad. 398, 
118 l.C. 821, (’29) A M. 296 , Bni Raj 
Saran v. Allianre Bank oj Simla (1930) 17 
Lah. 680, ('36) A. L, 940. 

(«) Basaivantappa v. Mallappa (1939) Bora. 245, 
(’30) A. B. 178. 


Ss. 

498,499 



574 


HINDU LAW. 


Ss. 

499,500 


(2) Where an adoption is made by a member of a joint 
family governed by the Mitakshara law, the adopted son 
becomes a member of the coparcenary from the moment of 
his adoption, and the adoptive father has no power either by 
deed or will to interfere with the rights of survivorship of the 
adopted son in the coparcenary property. The same principle 
applies where an adoption is made by a sole surviving 
coparcener subject, however, to any agreement binding the 
adopted son such as is mentioned in sec. 368 above ( /). See 
also sec. 500. 

This section applies to ancestral property in cases governed by the Mitakshara law. 
Just as the father cannot by deed or will defeat the rights of survivorship of a natural 
born son, so he cannot defeat the rights of survivorship of an adopted son. 

(3) AWiere the last male owner makes a valid bequest 
of his property and also gives his widow power to adopt, the 
adopted son is bound by the disposition in the will. If, under 
the will, the widow is entitled to a life estate in the property 
and the adopted son to a vested remainder' and to a certain 
sum for his mamtenance, it is competent to him to convey his 
interest to the widow and thus enlarge the life estate into an 
absolute estate in consideration of the increase of the amount 
of maintenance (g). 

{4) Where a Hindu (A) adopted a son and by a registered 
deed of adoption provided that his wife should enjoy the 
property in her own right for her life, it was held that the deed 
. did not affect the rights of a son adopted by the widow of 
A's pre-deceased undivided brother, as it could not be regarded 
as a family arrangement as far as the second adopted son 
is concerned and he was entitled to his share (h). 


500. Agreements curtailing rights of adopted son. — (i) 
Where the adopted son was a major at the time of the adop- 
tion, he may by an agreement with the adoptive father or the 
adopting widow made before the adoption, consent to a 
limitation of his rights in the property of his adoptive 
father (i). 


(/) Villa Butien v. Yawenamma (1874) 8 Mad. 
H.C G . y ^nkalanarayana v. Subbammal 
(IQII)) 43 I.A 20, 39 Mad. 107, 32 I.C. 
383, (’15) A. PC. 37 : Parmanand v. Shio 
Charan Das (1021) 2 Lab. 69, 59 I.C. 256, 
(’21) A L. 147. 

({ 7 ) Basant Kumar Basu v. Ram Shankar Ray 
(1932) 59 Cal. 859, 138 I.C. 882, (*32) A.C. 


600 

(A) Laxmibai v. Krsharrao (1941) Born. 300, 
197 I.C. 192, 43 Bom. L.ll. 214, (’41) 
A. B. 193. 

(i) Kashibai v. Tatya (1916) 40 Bom. 068, 36 I.C. 
546, (’18) A B. 312 ; Panduranq v. Nar- 
madahai Ram Krishna (1932) 56 Bom. 305, 
140 I.C. 200, (’32) A.B. 571. 



RESULTS OF ADOPTION. 


575 


(2) Where the adopted son is a minor, the question arises' 
whether it is competent to his natural father to enter into an 
agreement with the adoptive father or the adopting widow 
limiting his son’s rights in the property of the adoptive father. 
This question came up before the Judicial Committee in 
Krishnamurthi v. Krishnamurthi (j) where it was held that 
having regard to a consensus of judicial decisions [excepting 
that in Jagannadha v. Papamma ( 1893 ) 16 Mad. 400 ], an 
\arrangement made on the adoption of a minor whereby the 
Widow of the adoptive father is to enjoy his property during 
\er lifetime, or for a less period, that arrangement being con- 
Wnted to by the natural father before the adoption, is to be 
legarded as valid by custom (A:). “As soon, however, as 
ihe arrangements go beyond that, i.e., either give tiie widow 
property absolutely or give the property to strangers, they 
think no custom as to this has been proved to exist and that 
^ch arrangements are against the radical view of Hindu law.” 
^ agreement or consent by the natural father is not effectual 
in law or by custom to validate any other disposition taking 
effect after the adoption and curtailing the rights of the adopted 
son in property in which he acquires a present and an immediate 
interest by virtue of the adoptioiv. 

The High Court of Madras (Z), however, has held that an 
agreement between the adopting mother and the natural father 
whereby a portion of her husband’s estate is settled upon 
her for her absolute use and enjoyment with powers of aliena- 
tion is valid and binding on the adopted son, if the agreement 
is fair, reasonable and beneficial to him, and that the principle 
of the Full Bench ruling of that Court in Visalakshi v. 
Siva Ramier (m), as regards agreements between the adopting 
widow and the natural father, namely, that such agreements 
are valid if they are fair and reasonable, has not been affected 
by the Privy Council ruling referred to above. 

In the Madras case referred to above, Bamesam, J., said that the word “ property ” 
in the sentence from the judgment of tlie Privy Council set out above referred to the 
whole property, and not to a part thereof. 


0) (1927) 54 I.A. 248, 50 Mad. 508, 101 I.C. 
770, ('27) A.PC. 139. See also Bfiaiya 
Rabidai 5171 * 7 ^ v. Indar Kunwar (1888) 
16 I.A. 53, 59, 16 Cal. 556, 564 ; ChUko 
V. Janaki (1874) 11 Bom. H.C. 199; 
Ravji V. Lakahmibai (1887) 11 Bom. 381 ; 
Lakshmi v. Subramani/a (1889) 12 Mad. 
490 ; Visalakshi v. Sira Rainier (1904) 
27 Mad. 577 ; Balwant Singh v. Joti 
Prasad (1918) 40 All. 692, 47 I.C. 590, 
(’18) A. A. 115 ; Durgi v. Kanhaiya Lai 


(1927) 49 All. 579, 101 I.C. 678, (’27) A.A, 
387. 

(k) Uemendra Nath v. Jnaneridra (1930) 63 

Cal. 15.5, 159 I.C. 1101, (’35) A.C. 702; 
Banarsi Das v. Sumat Prasad (1936) 
58 All. 1019, 164 I.C. 1047, (’36) A.A. 
641. 

(l) Raju V. Nagamnial (1929) 52 Mad. 128, 

113 I.C. 449, (’28) A.M. 1289. 

(ot) (1904) 27 Mad. 577 (F.B.l. 


S.500 



676 


HINDU LAW. 


S. 500 (3) Though an agreement going beyond that sanctioned 

by custom does not bind the minor, it is not void, and it may 
be ratified by the adopted son on attaining majority, in which 
case he will be held bound by it (n). 


llliLslrations. 

(a) ^4, the sole surviving member of a joint Hindu family, makes a will whereby 

he bequeaths part of the joint famlhj property to a son whom he is about to adopt, part 
to his widow for life, part to kindred and part to charity. Before the adoption takes 
place the natural father of the adopted boy executes a deed by which he consents to the 

f revisions of the will- Immediately thereafter the testator adopts the son with all due 
eremony. The will is nob binding upon the adopted son : Krishnamurthi v. KriahnO’ 
lurthi (1927) 54 I. A. 248, 50 Mad. 508, 101 I.C. 779, ('27) A. PC. 139. 

(b) A grant of an annual sum for the purpose of lighting lamps in a temple made 
by the adoptive father at the time of adoption out of joint fatnily property docs not bind 
the adopted son, though it may be made with the consent of the natural father, unless 
such grant is recognised by custom as a grant that can be projierly made at the time of 
adoption: BaVerishna v. Skri Uttar (1019) 43 Bom. 542, 50 I.C. 912, (’19) A.B. 101. 


(c) The following agreements are also invalid : — 

(1) an agreement providing that the widow should have all the rights to which 
she would have been entitled in the absence of a son : Piirshotlam v. 
Bakhmbai (1914) 16 Bom. L.H. 57, 23 I.C. 599, (’14) A. B. 28. 

(2) an agreement enabling the widow to make a gift of a part of her husband’s 
property to her brother : Venhappa v. Fakinjoivla (1900) 8 Bom. L.B. 346. 

(3) an agreement enabling the widow to settle immoveable property forming 
part of her husband's estate in favour of her daughter : Vyasackarya v. 
Venkubai (1913) 37 Bom. 251, 17 I.C. 741. 

In Krishnamuriki v. Krishnamurihi referred to above, it was held by their Lordships 
of the privy Council that the con.sent of the natural father as such cannot affect the rights 
of the boy, for those rights do not arise until after his rights as a natural father become 
non-existent. It was also held that the natural father cannot bind his son by his consent 
given as guardian and matinger of the estate of his son, for “ the natural father is nob 
managing the estate of his child when the estate referred to is the estate which he will 
only get after adoption by another person.” As to the doctrine of approbate and 
[reprobate resorted to in some cases in support of the validity of the agreements now 
lunder consideration their Lordships said : “Next, can the case be solved by the doctrine 
»f approbate and reprobate ? Their Lordships think clearly not, for the doctrine of 
ipprobate and reprobate assumes election, and the adopted son has no election. He 
:annot undo the adoption and be as ho ■was.” Their Lordships eventually held that the 
inly ground on which even an agreement limiting the enjoyment by a widow of her 
lusband’s property during her lifetime could be upheld was that such an agreement 
vas sanctioned by custom established by the consensus of judicial decisions. 

. VI.— DIVESTING OF ESTATE ON ADOPTION BY ’WIDOW'. 

Preliminary note. — The question of divesting of estate by adoption can only arise 
when the adoption is made by a widow after her husband’s death. It can never arise 
when an adoption is made by a roan in his lifetime ; for, in that case, his estate vests, 


(n) Ramasamiy. V encatraniaiyan {\879) 2 Mad. 
91, 101, 6 I.A. 190, 208; Kali Das v. 
Bijui Shanker (1891) 13 All. 391, 393 ; 


Subramania Chettiarv. V€layudat}^ Chettxar 
(1932) 55 Mad. 408, 135 I.C. 311, (*31) 
A.M. 808. 



DIVESTING OF ESTATE. 


577 


on hia death, in the adojjted son as his nearest heir, and it cannot vest in any other 
person. But wlieu an adoption is made by a widow after her husband’s death, it may be 
that his estate is, at the date of adoption, rested in the widow as hia heir or it may be 
that it has passed to others and vested in them as in illustration (e) to section 502 below. 
The question then arises whether the adopted son is entitled to the estate of his adoptive 
father in whosesoever' a hands it may be at the date of adoption. The answer is in the 
negative ; he is entitled to it in cerlnin cases only, these being the cases set forth in 
section 502 below. 

Again, if the adoptive father was a member of a joint family governed by the Mitak- 
sliara law at the time of his death, it may be that his interest which passed to his copar- 
ceners by survivorship is still vested in them at the date of adoption by the widow, or 
it may be that it has passed from the sole surviving coparcener on his death to his heirs. 
In the former case the adoption vests in the adopted son the coparcenary interest of 
his adoptive father. As to the latter case there is a conflict of opinion. This subject 
is dealt with in section 506 below . 

The subject-matter of sec. 502 is closely connected with that of sec. 471, namely, 
" Termination of widow’s power to adopt.” The two sections relate to the same subject 
in different forms.” 

501 . Vesting and divesting of estate.— A valid adoption by 
a widow, if her husband was divided at the time of his death, 
may divest an estate of inheritance. It may, if her husband 
was a member of a joint family governed by the Mitakshara 
law, divest rights acquired by survivorship. The question 
what estate of inheritance is divested by adoption, is dealt 
with in sections 502 and 503 below. The question in what 
cases adoption can divest rights acquired by survivorship, is 
dealt with in section 506 below. [But now see notes to secs. 
471 and 472.] 

502 . Divesting of estate of inheritance. — Where a widow 
adopts, one of the objects of adoption is to perpetuate the 
adoptive father’s name by securing an heir (s. 447). It now 
remains to be seen how far this object is attained. 

In the cases mentioned in s. 471 {1} the adoption is valid. 
The widow divests herself and the adopted son gets the property. 
[Vide ills, (a) to (e) of s. 471.] 

In the cases mentioned in s. 471 (2) (a) the adoption is in 
valid. No question of divesting the estate arises. (Fide ills, (f) 
and (g) of s. 471.) 

In the case mentioned in s. 471 (2) (b) the adoption is 
vahd and divests the property. 

In the case mentioned in s. 471 (2) (c) the same result 
ought to follow. 

10 


S«. 

500-M2 



578 


HINDU LAW. 


Ss. 

502, 503 


But a valid adoption does not divest the estate of a person 
other than the adoptive father which had passed to his heir 
prior to his adoption, even if the adopted son might have 
succeeded to it if the adoption had been made earlier, {i.e.) 
prior to the opening of the succession. 

Illustralions. 

(a) A dies leaving three widow.s, and SIF, the widow of a predeceased son. On 
.4’s de.ath his estate vests in his widows. 5JF then adopts a son to her husband. The 
adoption does not divest the estate vested in A’s widows: DTiarnidhar v. Chinto (1896) 
20 Bom. 250. 

(b) A dies leaving a widow IF and a brother B. On A’s death his estate vests 
in TF as his heir. B then dies leaving a widow B IF with authority to her to adopt a son. 
On B'b death, his estate vests in BW as his heir. While IF is still alive. J51F adoirts a 
son X to her husband B. The adoption is valid, but it will only divest the estate of 
B Tested in BW so as to vest it in X ; it cannot divest the estate of A vested in IF. 
On F’’s death, however, the estate of A will pass to X as A’a nephew. See the 
next illustration. 

(e) In the case put in ill. (b) BIF adopts X after the death of IF, and after the estate 
of A has passed on IF’s death to A’s sapiridae. The adoption will not divest the estate 
of A vested in his sapindas : Kally Prosonno Ghose v. Oocool Chunder (1877) 2 Cal. 295. 

(d) A dies leaving a widow IF, and two brothers B and 51. On A’s death 
his estate vests in TF as his heir. B dies leaving a son BS. Then B1 dies leaving a widow 
jBI if with authority to her to adopt a son to him. While IF is alive, B1 TF adopts a son 
X to her husband Bl. The adoption is valid; it will divest the estate of jBI vested in 
B1 TF and vest it in X, but it will not divert the estate of A vested in TF. On TF’s death, 
however, the heirs to the estate of A will be his brothers’ sons BS and X, and they will 
inherit the property in equal shares. But if Bl IF adopts X after TF’s death and after 
the estate of A has vested in BS as his brother’s son, X cannot, on his adoption, demand 
from BS half the property of A, not even if the adoption was delayed beyond TF’s bfetime 
by the fraud of BS : Bhvbaneswari Debi v. Xilcomnl flSSG) 12 Cal. 18, 12 I. A. 137. This 
case was distinguished in Ananllia Bikkappa v. Shankar (1944) 70 I.A. 232, and applied 
and followed by the Patna High Court (o). 

503. Further case of divesting of estate in Bombay. — It is 
clear from s. 471 that the widow’s power to adopt is at an 
end in some cases. If she does adopt in such a case, the 
adoption is invalid, and it does not divest the estate vested 
in another. It has, however, been held by the High Court of 
Bombay (p), that if the widow in such cases adopts udth the 
consent of the person in whom the estate was vested, the 
adoption is not only valid, but it divests the estate vested 
in the consenting party. The High Court of Bombay stands 
alone in holding this view. The High Court of Madras has 
expressly dissented from it {q). 


(o) C/tanrlra C^ioor Dei-v. Vtl/huti Jihushan Deia 

(1944) 23 Pat. 763 

(p) Bahu V. Ralnoqi (1897) 2l Bom. 319; 

Bayapa v. Appanna (1899) 23 Bom. 327 ; 
Bhimappa t. Basmca (1905) 29 Bom. 


400; Sxddappa "v Smgangavda (1014) 38 
Bom. 724, 27 I.C 51, (’14) A.B. 107. 

(?) Annatnmah v. Mabbu Bali Tieddi (1875) 8 
Mad. H C. 108. 



DIVESTING OF ESTATE. 


579 


Illmlraiiona. 

(a) A and B are divided brothers. A has a son 8 who dies in hia lifetime leaving 
a widow iSir. A dies, and on his death his estate vesta in B as his nearest heir. Here 
the estate being vested in 5, cannot adopt to her husband S. 51^^ then adopts a 
son with B's consent. The adoption is valid, and it will divest the estate [of A] vested 
in B, and vest it in the adopted son : Babu v. Ratnoji (1897) 21 Bom. 319. 

(b) A dies leaving a widow and a daughter-in-law STT. On A’s death his estate 
vests in his widow. SIF then adopts a son to her husband with the consent of A’s widow. 
The adoption is validated by the consent, and it will divest the estate [of A] vested in 
A's widow, and vest it in the adopted son : Payappa v. Appanna (1889) 23 Bom. 327. 
As A*b estate vests in the adopted son, the power of A’s widow to adopt a son to A comes 
to an end : Vaman v. VenJcaji (1921) 45 Bom. 829, 61 I.C. 460, (’21) A.B. 55. 

It will be remembered that in the Madras and Bombay Presidencies a widow may 
adopt even without any authority from her husband. In Madras, she must in such a 
case obtain the consent of her husband’s sapindas, even if the estate of her husband is 
vested in her [a. 462]. In Bombay, she does not require the consent of any person if her 
husband’s estate is vested in her [s. 463]. But if her husband’s estate is vested in a third 
party, she may adopt with the consent of that party, and an adoption made with such 
consent is valid. 

504. Stridhana not divested.— Adoption by a widow does 
not divest her stridhana (r). 

505. Maintenance of widow on divesting of estate.— 
Subject to any agreement that may have been made by the 
widow prior to adoption [s. 500], a widow whose estate is 
divested by adoption is entitled only to maintenance out of 
her husband’s property (s). 

In fact, her rights are reduced to what they would have been if the husband had left 
a son. 

506. Adoption by widow in a joint family,— When a 
member of a joiirt family governed by the Mitakshara law 
dies and the widow vahdiy adopts a son to him [ss. 462 (2), 
463 (3), 472 and 473], a coparcenary interest in the joint property 
is immediately created by the adoption co-extensive with 
that which the deceased coparcener had, and it vests at once 
in the adopted son. 

Illustrations. 

(a) In the ills, (a) and (b) to sec. 472 the adopted son becomes a member of the 
coparcenary and is entitled to the share of his adoptive father. 

(b) In the ills, (d), (e) and (f) to sec. 472 the adopted son being in the senior line 
becomes entitled to zemindary, raj, or talukdary respectively by the rule of lineal primo- 
geniture [a. 590] and thus divests the junior member of the family in whom the property 
has been vested in the interval between the death of the adoptive father and the adoption. 

(c) In ill. (g) to sec. 472 the adopted son P is entitled to jivai estate and divests the 
Thakoro in whom it is vested subject to being divested by adoption. 

(r) West and Buhler, 4th ed., 1033. 1 («) Jamnabaiv. Rar/chand {18SZ) 7 B3m. 225; 

I Dalel V. Am'.ika (1903) 26 All. 260. 


Ss. 

503-506 



580 


HINDU LAAV. 


Ss. 

506-509 


The fact that only one member of the joint family survives at the time of adoption 
as in ills, (a) and (b), i? no bar to an adoption in the joint family. The family continuefl 
to be joint so long as any widow remains in it with a power to adopt. A So B two brothers, 
were members of joint family. .-I died leaving a widow. B afterwards adopted D and 
relinquished the property to D. A's widow' now adopted. It was held that the adoption 
was valid and that the adopted son could claim a repartition of the property in the 
hands of S, but was not entitled to the AVatan that belonged to the family (0* 

The joint family does not come to an end on the death of the last male coparcener. 
It continues to exist so long as a widow of a coparcener remains. If there is one 
widow she can adopt, and the adopted son will divest the property, wherever it is vested 
at the time («). 

If there is more than one -widow both can adopt, both adoptions are valid (y) 
except when the livo widows are in the relation of motherdu-law' and daughter-in-law. 
In the last case only the first adoption is valid. 


VII.— ALIENATIONS MADE PRIOR TO ADOPTION. 

507. Adopted son’s rights date from adoption. — The rights 
of an adopted son arise for the fir.st time on his adoption. 
Even where the adoption is made by a widow, his rights do 
not relate back (as was supposed at one time) to the date of the 
death of the adoptive father (w). But wliere an adoption is 
made by a widow, the adopted son has a right, in certain cases, 
to impeach alienations by her, though made prior to his 
adoption [s. 509]. 

In the case in which the aboTe proposition was laid down, it was argued before the 
Judicial Committee, that a widow who had received an authority from her husband to 
adopt should be considered as picgnant at the date of his death, and that the son adopt- 
ed by her should be regarded as a posthumous son ; but the Judicial Committee refused 
to act upon any such fanciful analogy, and held that although a son, w-hen adopted, 
acquires at once the full rights of a natural-born son, his rights cannot relate bach to 
any earlier period. 

508. Alienations by adoptive father prior to adoption. — An 
adopted son is bound by alienations made by his adoptive 
father prior to the adoption to the same extent as a natural- 
born son would be [s. 498 (3), s. 499 (1)]. 

509. Alienations by widow before adoption.— -(i) The 
rights of an adopted son spring into existence a( the moment 
of adoption, and displace the rights of the widow and of all 
persons claiming under a title derived from her. The result 
of the adoption being to divest the widow’s estate, the widow 
cannot after adoption alienate any portion of her husband's 
estate for any purpose whatever. 

(i) Jiumachandra linluji v. Shankar Apparao Efuii. L K 100.102 10 133 CSC) A 13 

•^(1945) liom. 353. / 

(n) Vmaiai v. ^'ani (1936) 60 Bom. 102. 38 v. Vilravi (1939) Noe. 68. 

(tt') BuinuiidiSi. V. jf'uM'nfe (1858) 7 M I.A. 169. 



EFFECTS OF INVALID ADOPTION. 


581 


(2) As regards alienations made by the widov/ before the 
adoption, if they are made for a legal necessity [s's. 18lA, 181B], 
or with the consent of the next reversioners [s. 183], the adopted 
son is as much bound by them as the reversioners would be (»). 
If the widow and the next reversioner with full rights such as 
a male reversioner or a daughter in Bombay {y) join in the 
alienation of the whole estate, the transaction may be regarded 
as a surrender, and is, therefore, valid though there is no legal 
necessity. But if the alienation was made without legal 
necessity or without the consent of the reversioners, the aliena- 
tion is valid to the extent only of the widow’s interest in the 
estate up to the date of adoption. After adoption the alienee 
has no power to retain the property as against the adopted 
son unless the claim of the adopted son has become barred by 
limitation. The rights of the adopted son do not await the 
determination of the widow’s estate by her death as in the 
case of reversioners (z). 

Alienation with consent of reversioners . — II the alienation was made by the widow 
with the consent of the next reversioners, but under circumstances which do not raise 
a presumption of legal necessity, the Court will upon proof of those circumstances set 
aside the alienation as against the adopted son (o) [s. 183]. 

Limitation . — The period of limitation for a suit by an adopted son against an alienee 
from the widow is 12 years from the date when the possession of the alienee becomes 
adverse to him ; see Indian Limitation Act, 1908, art. 144. Where a sale is not for legal 
necessity, the adopted son is entitled to treat it os o nullity, and he may sue for possession 
without suing to have the sale set aside (6) ; hence art. 91 of the Indian Limitation Act, 
1908, will not come in his way (ft). See notes to sec. 209. 

A son adopted by a widow after the death of the first adopted son divests the adoptive 
mother of the estate inherited by her from her first adopted son and is unaffected by 
alienations made by her without necessity (c). 


VIII.— EFFECTS OF INVALID ADOPTION. 


510. Effects of invalid adoption. — As a general rule it may 
be laid down that where there has been an adoption in form, 
but such adoption is invalid, the adopted son does not acquire 


(z) Lakthiuaaii itau \, LaKishmi (1882) 4 Mad. 
160; LahBhmaii Bhau v. Badhabai fl887) 
*^11 iom. 609 ; V. Dattaji (1895) 19 

Bora. 36 ; Mtro Narauan v. Balan (1895) 
19 Bom. 809. 

(v) Ytshti'anta v. Antu (1934) 58 Bum. 521, 
154 I. C. 252, (34) A.B. 251. 
iz) (1887) 11 Bom. 609, supra ; (1895) 19 
Boin. 809, supra; liamkrUhna v. Tnpu- 
rabai (1909) 33 Bora. 88, 1 1. C. 
647; Vaidi/anath v. Saiithn (1918) 

41 Mad. 75, 42 I. C. 24.5, (’18) A M, 469 \ 
[F B ] ove^ulill^ I'Srccraniulu v. Jiru- I 
to'DtifWJ (1903) 26 Mad. 143 ; V. Jiataji \ 


(1910) 34 Bom. 165, 4 I. C. 584 [invalid 
surrender — subsequent adoption] , Sakha- 
ram v. Thama (1927) 51 Bom. 1019, 107 
I.C. 265, (’28) A. B. 26 [invalid surrender 
— subsequent adopMon]. 

(«) Eamknshna v. Tripuruhai (1911) 13 Bora. 
L. R. 940, 12 I, C. 529. 

(6) Hananigoioda v. Irgowdu (1924) 48 Bom. 654, 
84, I.C, 374, (’25) A. B. 9. 

(r) ilarwMut v. Mrishna (1925) 49 Bom. 604, 
89 1 C. 62, (’25) A. B. 402 : PhUu Achi v. 
Rujagopala FiUai (1944) Mad. 970, (’41) 
A.M. 609. 


s«. 

509,510 



682 


HINDU LAW, 


S*. any rights in the adoptive family, nor does he forfeit his rights 
510, 511 in ]ij[g natural family (d). 

511. Gift to a person whose adoption is invalid. — ^\Tiere a 
gift or bequest is made to a person who is described as an 
adopted son, but such person was not adopted at all, or if 
he was adopted, his adoption is held to be invalid, the vahdity 
of the gift or bequest depends on the intention of the donor 
or testator to be gathered from the lau^age of the (^ed of 
gift or vdll and from the surrounding circumstances (e). If 
the intention is to benefit the donee as persona designata [that 
is a designated person], the addition of his supposed relation- 
ship is merely a matter of description, and the gift prevails 
though the description is incorrect (/). But if the assumed 
fact of adoption is “ the reason and motive of the gift and 
indeed a condition of it,” then the gift cannot take effect 
if the adoption is pronounced invalid (g). 


Illustrations, 

{^) A beciueatUs a legacy “to KoibuUo whom I have adopted^” and directs Ms 
wife “to perform the ceremonies according to the Shastras and bring him up.’' The 
ceremonies are not performed, and the adoption is held invalid. The bequest, however, 
to KoibuUo is valid, for it cannot be said in this ca.se that the assumed fact of adoption 
was the reason and motive of the gift, or that it was a condition of the gift. The inten* 
tion is to benefit the individual, named KoibuUo. The addition of his supposed character 
(of adopted son) is simply a matter of description. His identification is complete, and 
the gift will therefore take effect, though the description (of his being an adopted sou) 
is incorrect. In .such a case it is said that KoibuUo takes as a persona designaia : Nidhoo- 
moniv. SfirotlailSTb) 2G W.R. 91, 3 I.A. 253. See the lutlian Succession Act, 1925, a. 7G. 


(b) ..4 adopts a sou B, He then executes a writing whereby he authorizes B to 
offer oblations of pinda and water to him and his ancestors “ by virtue oj his {B) being 
ray adopted son,” and then makes a bequest to him of all bis property. It is found 
that the adoption is invalid. The bequest to B docs nob take effect, for the words “ by 
virtue of B being my adopted son ” show clearly that it was the intention of A to give 
his property to jS 05 his adopted son : Fauindra Deb. v. Rajeswar (1885) 11 Cal. 463, 12 
I.A. 72. 


(<i) fiatrciMv V. .lnba^a»/(18t>3)lMHd H.C.363; 
LakFhvmppa v. Ravtara (1875) 12 Bom. 

H C. 304. G97 ; Va'Uhilingavi v, Satesa 
11014) 37 Mad. 520, 15 I.C. 299, 

('14) A.M, 460 ; Dalpa{*ingji x. Raisingji 
(1915) 39 Bom. 528, 29 I.C. 943, ('15) 
A.B. 03; Vamnn v. Veni-Hji (1921) 45 
Bom. 829, 61 I. C. 4G0, ('21) A B. 55 : 
Harid<is Chatterji x. Slamnatna Sath ! 
Mallik (1037) 2 Cal. 265, 160 I.C. 332. 
(’30) A C 1. 

(f) Fanijidra Rfb v. Raje^fivar (1B85) 11 Cal. 463, 

12 I. A. 72, at p. 89. 

(/) KuihoomoHi v. 6’aro(ia (1876) 26 'W.R. 01, 3 


I.A. 253 ; Bireswar v. Ardha Chimder 
(1892) 10 Cal. 452, 19 1. A. lOl ; Subbarayar 
V. Subbamnial (1901) 24 Mai. 214, 27 I.A. 
162 ; .Vurari Lai v. Kinidan Lai (1909) 31 
All. 339, 1 I.C. 687 ; Khub Sinqh v 
i-i((1919) 41 All. 600, 52 I.C. 311, (’19) 
a. A. 391 ; Bai v. Laxwwrirao 

(1923) 47 Bom. 65, 68 I.C. 504, (.’22) 
A.B. 352. 

(9) (1885) 11 Cal. 463, 12 I.A. 72, supra ; 
Surendfaheshav v. DoorgasunJari (1892) 
19 Cal. 513, 19 I.A. 108; Lali v. 
Murlid)«ir (1906) 28 AU. 488, 33 I.A. ©7; 
£ara»ifi v. Karsandas (1899) 23 Bom, 271, 



MODE OP PBOOF AND ESTOPPEL. 


583 


IX.— MODE OF PROOF AND ESTOPPEL. 

512. Burden of proof and evidence. — The fact of adoption 
must be proved in the same way as any other fact. There 
are no special rules of evidence to establish an adoption (Zs). 
But the evidence in support of an adoption must be 
sufficient to satisfy the very grave and serious onus that rests 
upon any person who seeks to displace the natural succession 
by alleging an adoption. That onus is particularly heavy 
where toe adoption is made a long time after the date of the 
alleged authority to adopt {i). But when there is a lapse of 
55 years between the adoption and its being questioned, every 
allowance for the absence of evidence to prove such fact must 
be favourably entertained (j). 

An ex parte statement made by a widow in mntation proceedings that she had 
authority from her husband to adopt is not admissible in evidence against the rever- 
sioners in a subsequent suit challenging the adoption either under sec. 32 (3) or see. 33 of 
the Indian Evidence Act, 1872 (I). 

Statements made by a testator in his will to the effect that the legatee was the adopted 
son of the testator can be used as evidence by the legatee in a suit for a declaration of 
adoption (i). 

513. Estoppel. — (1) A person who is otherwise entitled 
to dispute an adoption may, by his declaration, act or omission, 
be estopped from disputmg it. The rule of estoppel is laid 
do^vn in s. 115 of the Indian Evidence Act, 1872. It is as 
follows : — 

“ Where one person has, by his declaration, act or omission, 
intentionally caused or permitted another person to believe 
a thing to be true, and to act upon such belief, neither he nor 
his representative shall be allowed, in any suit or proceeding 
between himself and such person or his representative, to 
deny the truth of that thing ” (m). 


(fi) See Huradhun v. Muthoranath (1849) 4 M. 
I.A. 414, 425 [asquieseuce] ; Chandra 
Eunwar v. Narpat (1906) 34 I.A. 27, 
29 All. 184 [admission] ; Ajabsing v. 
/Tanatftau (1898) 20 I.A. 48, 3 C.W N. 
130 [pedigree] ; Lai Achal Ram v. Kazim 
Busein (1905) 32 I.A. 113, 27 AU. 271 
[tradition in a wajib-ul-arz] ; Rnp Krain 
V. Gopal Dcii (1909) 36 I.A. 103, 36 Cal. 
780, 3 I.C. 382 [lapse of time] ; Pran 
Devi V. Sha?nbhu ^alh (1920) 42 All. 382, 
76 I.C. COl, (’20) A.A. 322 [lapse of time] , 
Putin Lai V. Parbati Eunwar (1915) 42 
I.A. 155, 37 All. 359, 29 I.C. 617, ('15) 
A. PC. 15 [aged adopter] ; Diwakar v. 
Chandanlal (1917) 44 Cal. 201, 39 I.C. 6, 
(’16) A. PC. 81 [absence of deed and of 
entries of expenditure on ceremonies). 

(0 Dal Bahadur Singh v. Bijai Bahadur Singh 
(1930) 57 I.A. 14, 52 All. 1, 122 I.C. 8, 
(’SO) A. PC. 79 ; Balak Ram v. Nanun 
Mai (1930; 11 Lah. 503, 128 I.C. 532, 


(•30) A.L. 579. 

(;) Ramakrishna Pillai v. Thiruvamvuna PiUai 
(1932) 55 Mad. 40, 139 I.C. 684, C32) 
A.II. 198*, Rosken Lai v. Samar Rath 
(1938) Lah. 173, (’37) A.L. 626. 

(it) (1930) 57 I.A. 14, 52 All. 1, 122 I.C. 8, 
(’30) A.PC. 70, supra. 

(/) Chandreshivar v. Bisheshivar (1926) 5 Pat. 

777, 101 I.C. 289, (’27) A P 61. 

(m) Dharam Eunwar v. BaUvant Singh (1912) 39 
I.A. 142, 148, 34 AU. 398, 15 I.C. 073 
[representation by a widow that she had 
power to adopt] ; Surendrakesluw v. 
XJoorffOSundan (1892) 19 I.A. 108, 128, 19 
Cal. 513, 532 [no misrepresentation] ; 
Bar Shankar V. Lai Raghuraj (1907) 84 
1 A. 125, 29 All. 519 [denial of adoption 
by person adopted] ; Dhaiavi Prakash 
V. Ealaicati (1,928) 50 All 885, 110 I.C. 
605, (’28) A A. 459 fadoptiun challenged, 
by adoptive mother]. 


Ss. 

512,513 



584 


HINDU LAW. 


S. 513 


(2) Estoppel operate.s merely as a personal disqualification, 
and does uot bind any one who claims by an independent 
title (h). 

(•3) A person may'- be so estopped, although he was acting 
in good faith, or without a full knowledge of the circumstances, 
or was under a mistake or misapprehension (o). 


(4) The misrepresentation to operate as an estoppel must 
be of a matter of fact. An erroneous expression of opinion that 
an adoption was vahd in law cannot lead to an estoppel {p). 

(-5) Mere acquiescence in an adoption, or mere presence 
at an adoption, does not create an estoppel (q) or even 
subsequent conduct recognising the adoption (r). 


J and R are two Hindu brothere. In 1008 J executes a deed purporting to adopt D 
as a son to him. J dies in 1912. R dies in 1914 leaving a daughter S. On R'a death 
D takes possession o£ his estate claiming to be entitled to it as R's brother's adopted son. 
S sues D for a declaration that she is entitled to R’s property as his heir. D alleges that 
he was validly adopted by J, and that there was a giving and taking in adoption, and, 
further, that if there was no giving or taking, R was estopped from disputing his adoption 
by reason of certain .acts and representations of his, and 5, claiming through J?, was also 
so estopped. The acts and representations alleged to lead to estoppel are (1) that R had 
brought D from his village and been a witness to the deed of adoption, (2) that 1! had 
allowed D to perform the cremation ceremony of J, and (3) that at the time of D's marriage 
R had represented that he was the adopted son of J, No giting or taking in adoption 
vjas proved to have taken place. [If so, though there was an adoption in fact as shown by the 
deed of adoption, there was no valid adoption in law.] Held by the Judicial Committee 
that no estoppel arose under sec. 11.5 of the Indian Evidence Act, 1872. No estoppel can 
arise unless there was a misrepresentation as to a matter of fact. It is clear that there was 
no misrepresentation on the part of R as to the fact of the adoption. An adoption in fact 
wa.s there. But R may have believed, though wrongly, that the adoiition was also i:alid in 
law ; but that creates no estoppel at all. In the course of their judgment their Lordships 
cited a passage from the judgment of the Judic-ial Committee in Gopee LaVs case (s) which 
is as follows : But it appears to their Lord.ships that there is no estoppel in the case, 

Ihore has been no misrepresentation on the part of [If], [if] is alleged to have represented 
that [D] was adopted. The [defendant’s] case is that he was in fact adopted. So far 
as the /act is concerned there is no misrepresentation. It comes to no more than this, that 
[/f] arrived at a conclusion that the adoption which is admitted in fact was valid in law, 
a conclusion which in their Lordships’ judgment is erroneous ; but that creates no estoppel, 
whatever between the parties” : Dhanraj v. Sonibai (192.5) 52 I. A. 231, 52 Cal. 482, 
8j I.C. 357, ( 25) A. PC. il8. [Another point taken in the case was that an estoppel 


(a) Dharam Kunicar v. Balujunl Swgh (lUlU) 
3!) I.A. 142, 148, 34 All. 308, 1,5 I C. 
673 : Bhanra] v. So, it Sot (lo's) 
52 I.A 231, 243, 52 Cal 482, 496 87 
I.C. 357, (’25) A. PC. 118. 

(o) Sarat Chunder V. fJopaf Clinnder (ISO'"*) 19 

I.A. 203, 215, 20 Col, 296, 310 

(p) Uopee Lallv. C/iimdraoler tlS72} I.A, Sup, 

Vul 1.31, 133, 11 Ueoa. 1,. II 391 : (1925) 
52 I.A. 231, 242-243, 52 Cal. 482, 495, 


8, I.C. 357, (’25) A. PC. 118, supra. 

(?) GuruhngasKami v. Eamalakshmamma (1895) 
18 Mad. 63, 60; Vaithiliiiqam v Muru~ 
gaian (1914) 37 Mad. 529, 15 I.C, 299, 
(’14) A.M. 400. 

(r) Tirkangavda Mallangauda v .Shivappa Patit 

(1943) Bom. 706, 45 Bom 1,11 992, (’44) 
A.B. 40. » ’ ' ' 

(s) (1872) I. A. Sup. Vol, 131, 133, 11 Beng. 

L.R. 391. 



KPJTRIMA ADOPTION. 


585 


iu cases of adoption was purely personal^ so that even if R was estopped, his daughter S 
could not be estopped. Their Lordships were inclined to this view, but they did not 
base tl^eir decision on that argument,] 

The .doctrine of factum valet in relation to adoption. — The texts relating to the 
capacity to give, the capacity to take, and the capacity to be the subject of adoption, 
are mandatory. Hence the principle of factum talel is ineffectual in the case of an 
adoption in contravention of the provisions of those texts (t). 

514. Limitation. — (i) The period of limitation for a suit 
to obtain a declaration that an alleged adoption is, invalid, 
or never in fact took place, is 6 years from the date when the 
alleged adoption becomes known to the plaintiff [the Indian 
Limitation Act, 1908, Sch. I, art. 118]. 

(2) The period of limitation for a suit to obtain a declara- 
tion that an adoption is valid is 6 years from the date when the 
rights of the adopted son, as such, are interfered with [the 
Indian Limitation Act, 1908, Sch. I, art. 119]. 

Art., 118 applies only to a suit under sec. 42 of the Specific ReUef Act, 1877, /or a 
declaratory decree that an adoption is invalid or did not take place. The article applicable 
to a suit by a reversioner /or possession of immoveable property on the death of a Hindu 
female is art. 141 [see sec. 200 above], 'even if it is necessary to decide in the suit whether on 
adoption was or was not valid : Kalyanadappa v. Chanbasappa (1924) 51 1. A. 220, 48 Bom. 
411, 79 I. C. 971, (’24) A. PC. 137. 

I 

X,— KRITRIMA ADOPTION. 

515. Kritrima form of adoption.— The hritrima form of 
adoption is prevalent in Mithila and the adjoining districts, 
and it is recognized by the law. Either man or woman 
can adopt in this form. The following are the main points of 
distinction between dattaka adoption and kritrima adoption: — 

(1) The consent of the adopted son is necessary to the 

validity of the adoption ; therefore a minor 

who has attained the age of discretion, may he 
adopted with the parent’s consent. The word 
" kartaputra ’ indicates hritrima and not dattaka 
adoption («), 

(2) The adopted son must belong to the same caste as 

the adoptive father. His age and his relation- 
ship to the adoptive father are immaterial. 


■<'t) Lakshmappa v. ItaTnava (1875) 12 Bom. H.C. 
364, 398 ; (1899) 22 Mad. 398, 26 I.A. 113, 
144, supra; Qanga v, Lckhraj (1887) 9 
All. 253, 200-297; Gopal v. Hamant 

’ (1879) 3 Bom, 273, 293-294 ; Padajirav 
^ V. ilamrao (1889) 13 Bodi. 100, 1G7 


(1898) 22 Bom. 812, supra; Txrnangauda 
MaUangauda v. Shivappa Fat-d (1943) 
Bom. 706, 45 Bom. L. £. 992, ('44) 
A.B. 40. 

(u) J.alita Prasad v. Sarnam Singh (1933) 
1, 9 I.C, 491, (*33) A.B. 165. 


S«. 

513-515 



586 


HINDU LAW. 


S. 515 


(3) No ceremonies are necessary to the validity of a 

hitrima adoption, nor is a document necessary {v). 

(4) A wife can adopt a kritrima son to herself, though 

her husband has adopted a sou to himself. 
Similarly, a widow can adopt a hitrima son to 
herself. But neither a wife nor a widow can 
adopt a kritrima sou to her husband, even when 
expressly authorized by him to do so. A wife 
adopting a kritrima son to herself does not require 
the consent of any person, not even that of her 
husband. A widow may adopt a kritrima son 
to herself without the consent of her husband’s 
sapindas. 

(5) A kritrima son does not lose his rights of inheritance 

m his natural family. In his adoptive family, 
however, he can only inherit to the person 
actually adopting him and to no one else {w). 
Kartaputra — M to kartaputra and his rights, 
see the undermentioned case (a;). 


(f) Eamla Prattadv. Murli Manohar (11)34)13 
Pat. 550, 152 I. C. 446. ('34) A.P. 598. 
(w) Sarkar's Hindu Law, 7th e<l., 293; 

Mayne’s Hindu Law, section 226 ; 


Trevelyan’* Hindu Law, pp. 159-161 and 
pp. 205-206. 

(*) Ranhaiya X^al v. Mugf^ammat Sugaltuer (1925) 
4 Pat. 824, 89 1. C. 672, (’25) A. P. 611. 



687 


CHAPTEE XXIV. 

MINORITY AND GUARDIANSHIP, 

516. Age of majority. — There is a difference of opinion 
among the Hindu writers as to the age of majority under 
Hindu law. According to some witers, minority termiaates 
at the completion of the fifteenth year ; accorduig to 
others, at the completion of the sixteenth year. The former 
view is held in Bengal {y) ; the latter view, in other parts of 
British India (z). This difference has lost much of its 
importance since the passing of the Indian. Majority Act, 
1875, which applies to all persons domiciled in British India, 
and to all matters except marriage, dower, divorce and adoption. 
According to that Act, every minor of whose person or property 
a guardian had been appointed by any Court, and every minor 
of whose property the superintendence has been assumed by a 
Court of Wards is deemed to have attained his majority at the 
completion of the twenty-first year ; and in all other cases, at 
the completion of the eighteenth year. 

Marriage . — See sec. 427 above. 

Adoption. — See secs, 450 and 465 above. 

517. Guardians. — Guardians may be divided into three 
classes, namely — 

(1) natural guardians [ss. 518-531] ; 

(2) guardians appointed by a father by will [s. 532] ; 
and 

(3) guardians appointed — 

(i) under the Guardians and Wards Act 8 of 1890 
by a District Court or by a Chartered High 
Court in the exercise of its ordinary original civil 
jurisdiction ; or 

(ii) by a Chartered High Court in the exercise of its 
inherent powers [ss. 535-537]. 

Xy) Cally Churn v. Bhuggobulty (1873) 10 (a) Shiiji v. Datu (1875) 12 Bora. H. C. 281, 

L. U. 231 [P. B.l ; Mothoormohun v. 290 ; Reade v. Krishtia (1886) 9 Mad. 391 

Soorendro (1876) 1 Cal. 108. 397«398. 


Ss. 

516 , 517 



688 


HINDU LAW. 


S. 518 


I.— NATURAL GUARDIANS, 

518. Guardianship of person and of separate property of 
minor. — (1) The father is the natural guardian of the person 
and of the separate property of his minor children (a), and next 
to him the mother (b), unless the father has by his will 
appointed another person as the guardian of the person of 
his children [s. 532]. 

(2) No relation except the parents is entitled as of right 
to the guardianship of a miiror (c). Failing the father and 
mother, the Court may appoint the nearest male paternal 
kinsman, and, failing paternal kinsmen, the nearest male 
maternal kinsman as guardian of the minor (d). But the Court 
is not bound to do so. It may appomt a maternal relation in 
preference to a paternal relation, or it may even appoint a 
stranger, if the welfare of the minor requires it (e). 

(3) The Coiu-t has no poiver to appoint a guardian of the 
person of a minor whose father is living and is not, in the 
opinion of the Court, unfit to be guardian of the person of 
the minor (/). 

{4) The provisions of this section apply — 

(i) to the custody of the person of a minor, whether 
governed by the Mitakshara law or the Dayabhaga 
law ; 

(ii) to the custody of the separate property of a minor, 
as distinguished from his imdivided interest in 
coparcenary property, in cases governed by the 
Mitakshara law ; and 

(iii) to the custody of the separate property of a minor 
as well as his undivided interest in coparcenary 
property in cases governed by the Dayabhaga 
law [s. 279]. 

As to the custody of the undivided interest of a minor 
in cases governed by the Mitakshara law, see sec. 519 below. 

(а) NanabJuii v. Janardhan (1888) 12 Bom 110, 

120: Venkaleswaiany. Sarodawhai (1935) 

Bang. 590, 160 I. C. 878, ('36) A. 11. 67 

(б) Kauletra v. Jorax (1900) 28 AU. 233 , Kangu- 

bai V. Gopal (1903) 5 Bom. L. K. 542 

(c) Subharami lieddi v. Ckenclmratjha* a Reddx 

(1945) Mad. 1714. 

id) Guliat, In re (1908) ^'1 Bom. 50. 

(?) Krtsto Kxssor v. Kadermoye (1878) 2 Cal. 

Xj. 11. 583 > Jilit. Jihtfcuo K.ocr w Chainela 


KoerilB'J7)2C W. N. 101 (1008) 32 Bom. 
50,i>upra ; T/ioyuuMntii v. /^uppa?ina(1915) 
38 Mad 1125, 20 I C. 179, ('15) A. M. 059 , 
Guard\ai\3 aud \Vard3 Act, 1890, a. 17; 
Emperor v. Idxtal Prasad (19201 42 All. 146, 
54 1. C. 402, (’19) A. A. 30 [Kidnapping]. 
(/) Guardians and IVards Act 8 of 1890, ser. 19, 
cl. <b). 8ee iiesant v Aurai/aniaft (1914) 
41 I. A. 314, 324, 38 Mad 807, 822. 24 I. 
C. 290. (’14) A. PC. 41. 



GUARDIANSHIP. 


589 


Father's righi. — “As in this country [England] so among the Hindus the father is 
the natural guardian of his children during their minorities, but this guardianship is iu 
the nature of a sacred trust, and he cannot therefore during his lifetime substitute another 
person to be guardian in his place. He may, it is true, in the exercise of his discretion 
as guardian, entrust the custody and education of his children to another, but the 
authority he thus confers is essentially a revocable authority, and if the welfare of his 
children requires it, he can, not withstanding any contract to the contrary, take such 
custodj^ and education once more into his own hands. If, however, the authority has 
been acted upon in such a wa}" as, in the opinion of the Court exercising the jurisdiction 
of the Crown over infants, to create associations or give rise to expectations on the part 
of the infants which it would be undesirable in their interests to disturb or disappoint, 
such Court will interfere to prevent its revocation” ig). 

M other s right. — When the father is alive, he is entitled to the custody of his minor 
child, however young it may be, in preference to the mother [h). 

Capacity of minor to act as guardian. — A minor is incompetent to act as guardian 
of any minor except his own wife or child [the Guardians and Wards Act, 1890, sec. 21]. 

Adoptive father. — Where a widow adopts a son to her husband under an authority 
given to her by his will, the natural father should not, on the death of the adoptive 
mother, be appointed guardian of the person of his sou where there are other suitable 
members of the adoptive father’s family available and where the effect of appointing 
the natural father would be to frustrate the intention of the adoptive father expressed 
by him in his will (i). 


519. Guardianship of property where family is joint.— 
If the minor is a member of a joint family governed by the 
Mitakshara law, the father as karta (manager) is entitled to 
the management of the whole coparcenary property including 
the minor’s interest. After the father’s death, the management 
of the property, including the minor’s interest therein, passes 
to the eldest son as karta [s. 236]. The mother is not entitled 
to the custody of the imdivided interest of her minor son in 
the joint property, because such property is not separate pro- 
perty, though she is entitled to the custody of his person and 
of his separate property, if any (j). If all the sons are minors, 
the Court may appoint a guardian of the whole of the joint 
property until one of them attains majority {k). Specially when 
the widows of the father were quarrelling among themselves {1). 
On any one of the sons attaining majority, the guardian- 
ship of the property constituted by the Court ceases, and the 
Court is boimd to hand over the joint family property to the 


(<?) BesanL v. Narajaniah (1914) 41 I. A. 314, 
320-321, 38 Mad. 807, 819, 24 I. C. 
290, ('14) A.PC. 41; Sukhdeo v. Ram 
. Chander (1924) 40 All. 700, 83 I. C. 24, 

('24) A. A. 622. 

{h) Empress v. Prankrishna (1832) 8 Cal. 909. 
(i) Monomohini Da’ii v. Hari Prasad (1925) 4 
Pat. 109. 81 X. U. lU4o (’25) A. P. 445. 


(j) Gharih Ullah v. Ehalak Simjh (1003) 25 All. 
407, 30 I. A. 165 ; Goarah v. Quiadhar 
(1880) 5 Cal. 210 ; V irupakshappa v. 
Xilganqava (1895) 19 Bora. 309 |F.B 1; 
Sftam Knar v. ^Xohanunda (1802) 19 Cal. 
301. 

(fc) Bindaji v. Mathurabai (1906) 30 Bom. 152. 
(1) Seethabai v. yarnsimha (1045) Mad. 568. 


Ss. 

518, 519 



590 


HINDU LAW. 


Ss. adult sou, notwithstanding the fact that the other sons are 
519-523 minors (?«). See secs. 535-537 below. 


Illuslrations, 

(a) H, a Hindu governed by the Mit.akshura law, dies leaving two sons A and B and 
a widow, the mother of B. A is an adult, but £ is a minor, , After the death of JEf, it is 
competent to A aud B to live as members oj a joint Slitakshara family, or to partition 
the property inherited by them from their father. If tliey adopt the former course, 
A as the senior male member is entitled to manage the whole joint property, including 
the minor’s undivided interest therein. B’s mother is not entitled to be appointed 
guardian of the undivided interest of her son B in the joint property, for such interest is 
not separate property. But she may be appointed guardian of B’s person and of his 
separate property, if any. If A and B partition the property inherited by them from 
their father, then B’s mother is entitled to the custody of the share allotted to B on 
partition, such share being his separate property [sec. 223, sub-sec. (4)] : GouraTi v. 
Chijadhur (1880) 5 Cal. 219. 

(b) If in the case put in ill. (a), A also is a minor, tlie Court may appoint a guardian 
of the whole joint property under the Guardians and Wards Act, 1890, and the Court 
may in such a case appoint even B’s mother as such guardian : Bhidaji v. Mathuraba 
(1905) 30 Bom. 152. But the guardianship of the individual appointed by the Court 
ceases when A attains majority, and the management of the whole property will then 
vest in him as karta : Bamchandra v. Krhlvnarao (1908) 32 Bom, 259. 

Capacity oj mimr to act as guardian. — ^There is no rule of Hindu law that the manag- 
ing member of an undivided family should be an adult. He may be a minor in which 
case he is competent to act as guardian not only of his own wife and children but also the 
wife and children of another minor memlrer of the family [the Guardians and Wards 
Act, 1890, sec. 21.] 

520. Guardianship of a married female. — See section 443 
above. 


521. Guardianship of an adopted son.- — The guardianship 
of an adopted son who is a minor passes on his adoption from 
his natural father and mother to his adoptive father and 
mother [n). 

522. Guardianship of illegitimate children. — The mother 
is the lawful guardian of her illegitimate children (o). Where 
the father is Imown, he has the preferential right (p). 


523. Ee-marriage of mother — A Hindu widow does 
not by the mere fact of her re-marriage lose her right of 


(«i) Ram''handra v. KrUhnarao (1008) 32 Bom. 
259 : Chandrapal Hingh y. Sarabnt Singh 
(1930) 11 Luck. 67, 154 I. C. 856, f35) 
A. O. 334. 

(n) Sreenarain v. Kishen (1873) 11 Ben". L. R, 
171, 19 I.A. Sup. Vol. 340, 163 ; Lak’ih- 
mibai v. Shridhar (1879) 3 Bom. 1. Sec 


also l^irtanaya v. Sinanaya (1886) 9 
Bom. 360. 

(o) VenkaiHina v. Saiitramma (1889) 12 Mnd. 07, 

68 , Saxthri, 171 the matter of (1892) 10 Bom. 
307, 317. 

(p) Prem Kuer v. Jianarsi Das (1934) 15 Lah. 

G30, 150 I.C. 87, (’31) A. L. 1003. 



GUARDIANSHIP. 


591 


guardianship, in any case where re-marriage is recognized by 
the custom of the caste to which she belongs {q). 

See The Hindu Widows Re-marriage Act, 1856 ; secs. 3 and 5. 

524. Loss of caste. — Under the Hindu law, loss of caste 
entailed a loss of the right of guardianship of the person and 
property of minors (r). But it is no longer so since the passing 
of the Caste Disabilities Removal Act, 1850 (s). 

This act contains only one section wliich runs as follows : — 

So much of any law or usage now in force [in British India] as inflicts on any 
person forfeiture of rights or property by reason of his or her renouncing, or having 
been excluded from the communion of any religion, or being deprived of caste, shall 
cease to be enforced as law [in British India.] ” 

As to change of religion, see secs. 525*526. 

525. Change of religion by father. — The fact that a 
father has changed his religion is of itself no reason for depriving 
him of the custody of his children {t). But if at the time of 
conversion, the father voluntarily abandons his parental rights, 
and entrusts the custody of his child to another person in order 
that it may be maintained and educated by him, the Court 
will not restore back the custody of the child to the father, 
if such a course is detrimental to the interests of the child. In 
such a case the Court should be guided by what it conceives 
to be best for the welfare and well-being of the child («). 

See notes to sec. 524. 


526. Change of religion by mother. — A child in India, 
under ordinary circumstances, must be presumed to have 
his father’s religion, and his corresponding civil and social 
status ; and it is, therefore, ordinarily and in the absence of 
controUing circumstances, the duty of a guardian to train his 
mfant ward in such religion. Therefore, where a Hindu 
mother changes her religion, the Court may, if it is in the 
interest of the mmor, remove the child from the custody of 
the mother, and place the child under a Hindu guardian [v). 


iq) Ganga v. Jhalo (1911) 38 Cal. 802, 10 I. C. 
60 ; Msi. Indi v. Qhanxa (1920) 1 Lah 146, 
53 I. C, 783. (’19) A. L. 40 ; Puilabhai v. 
Mahadu (1900) 33 Bom. 107, 144, 1 I. 0. 
059. But 'ice Panchappa v. Sanganbiisaira 
(1900) 24 Bom. 89, 91 , jUf. Iiu,n Labhai 
V. Durga Das (1934) 15 Lah. 28, 147 I.C. 
19, (’33) A. L. 817, 

(y) Strange’s Hindu Law, vol. I, p. 100. 


(s) Kana/n Pam v. Biddya liam (1878) I .411. 

549 ; Kaxilcsra v. Jorai (1906) 28 All. 233. 
(0 Act 21 of 1850 ; Machoo v. Arzoon (1866) 
5 W. E. 2-35 ; Shamsing v. Santabai (1901) 
25 Bom. 651, 655. 

(m) Mokoond v. Nabodij) (1898) 25 Cal 881; 
Joshy Assam, in the matter of (1896) 23 
Cal. 290. 

(t) Skinner v. Orde (1871) 14 M. I. A 309, 323. 


Ss. 

523*526 



592 


HINDU LAW. 


Ss. 527. Change of religion by minor. — Where a Hindu child, 

527,528 ,,vlio has become a convert to Christianity or any other 
religion, leaves his parents, and proceedings are instituted by 
the parents for the custody of the child, the question arises 
as to what is the true principle by which the Courts should be 
guided in such cases. Is it that the minor, if he is old enough to 
form an intelhgent preference, should be allowed to exercise his 
oivn discretion as to where he ivill go ? Or, is it that the parents 
are entitled as of right to the custody of the child, irrespective 
of his c\dshes ? Or is it that the Court should in each case do 
what it conceives to be for the welfare and interest of the 
child ? The first view was taken in the earliest decisions 
on the subject. Then came a series of cases in which the 
second view was taken («’). The last view is the one now 
taken by the High Courts of Bombay (x), Calcutta {y), and 
Allahabad ( 2 ). 


POWESS OE XATVJRAL GUARDIAN. 

528. Alienations by natural guardian.— The natural 
guardian of a Hindu minor has power, in the management 
of his estate, to mortgage or sell any part thereof in a case of 
necessity ox for the benefit of the estate \a). If the alienee does 
not prove any legal necessity or that he made reasonable 
enquiries, the sale is invalid (6). The power of a manager of a 
joint family to make a suitable provision in connection with the 
marriage of a daughter of the family in the shape of a gift of a small 
portion of the family property caimot be exercised by a widow, 
actmg as guardian ofher son, Avho is the owner of the property (c). 

In Hunoomaii Persaud F. Mnssuminat Babooee {d)f ■which is the leading case on the 
subject, the Judicial Committee said ; — 

“ The power of the manager for an infant heir to charge an estate not his own, is, under 
the Hindu la'w, a limited and qualified power. It can only be exercised rightly in a ca-^e of 
need ot for the benefit of the estate The actual jfressure on the estate, (he danger to he 


(w) The Queen v yesbitt (1853) Perry’s O.C. 103 ; 

Reade v. Krishna (1886) 9 Mad. 391, 

\x) Saithn, in the mailer of (1892) 10 Bom. 307. 
(y) See Joshy Assam, xn the matter of (1890) 23 
Cal. 290 ; MoJioond v. Kobodip (189S) 25 
Cal 881. 

U) Sarat Chandra Forman (1890) 12 All. 213. 
(a) Bunoomati Persavil v. Mussumat Babooee 
(1856) 0 M I. A. 393, 412 [mortgage by 
mother upheld] ; iyoonder Narain v 
Bennud Ham (1879) 4 Cal. 76 (sale by 
mother for legal necessity upheld] ; Bat 
Amrit v. Bai Mamk (1875) 12 Bom. 
H. C. 79 [sale by mother upheld] ; Muran 
V. Tayana (1800) 20 Bom. 286 [sale by 
mother of two plots of land — sale of one 
upheld and tliat of the other set aside as 
nut being one for legal necessit\ ] , KandJua 


Lai V. Mtina Biti (1898) 20 All. 135 
[mortgage by mother not upheld as not 
being one for necessit\ ] ; Haghubans v. 
Indur)it{VJ2Z) 45 All. 77, 69 I.C. 083, ('22) 
A A. 526 [mortgage by mother upheld 
in iian] : liayho v. Zam (1929) 53 Bom. 
419, 118 I.C. 555, (’-9) A, B. 251 [sale by 
guardian of lus own property and that 
of minor’s property — one piece of laud 
purchased with sale proceeds of both 
properties— sale of minor’s property 
not upheld]. 

(6) ^Aallappa v. Avunt Balkrishna (1937) 
Bom. 59, 38 Bom. ]. K. 941, ICO I.C. 
154. (’36) A. B. 386. 

(c) Palamahivial v. Kothandarama Goundan 
(1944) Mad. 418 

(rf) (LS5G) 0 M I.A. 393. 423. 



GUARDIANSHIP, 


593 


avtriedy or the benefit to be confened upon if, hi the particular inslayicCy is the thing to be 

regarded Their Lordships think that the lender is bound to enq.uire into the necessities 

for the loan, and to satisfy himself as ■well as he can, with reference to the parties with 
wliom he is dealing, that the manager is acting in the particular instance for the benefit of 
tlie estate. But the}^ think that if he does so mquire, and acts honestly, the real existence 
of an alleged, sufficient and reasonably credited necessity is not a condition precedent to 
the validity of his charge, and they do not think that, under the circumstances, he is 
bound to see to the application of the money.’* 

Alienation by mituraj guardian without legal necessity , — Where the mother of a minor 
as his natural guardian mortgages the minor's property for a legal necessity, and after- 
wards sella the property before the due date of payment of the mortgage amount, the sale 
itself is one without legal necessity though she applies part of the purchase money in 
payment of the mortgage debt. The minor therefore is entitled to set aside the sale 
subject, however, to payment to the purchaser of the amount applied towards payment 
of the mortgage debt, his estate having benefited to that extent (c). In the case of a 
mortgage, by the guardian, of the minor’s estate for the purpose of defraying the 
expenses of the minor's marriage performed in violation of the Child Marriage Restraint 
Act it was held that there was no legal necessity to support the mortgage (/), 

For the benefl of the estate . — “ Mere increase in the immediate income of the minor 
or of his estate does not necessarily justify the inference that the particular transactiou 
IS ‘ for the benefit of the estate ’ within the meaning of this rule, which could hardly have 
been intended to include cases of speculative development of estates of minors ” {g). 
When the only circumstance relied on, in justification of the sale is tliat the price realised is 
much more than the normal value of the property, the sale cannot be regarded as one 
for the benefit of the estate (^). A mortgage by a mother of the property of her minor 
son to secure a loan to carry on a trade on behalf of the minor which was not ancestral is 
not a transaction for the benefit of the minor («). Nor a sale for tlie sole purpose of 
investing the price so as to bring in a large income Ij ). See sec. 243A. 

Burden of proof . — The burden f»f proof on the alienee is the same as that in the case 
of an alienation by tlie n\anagor (L) See sec. 244 above. 

The Chiardiatis and Wards Act^ 1890. — -Where a guardian is appointed of the property 
of a Hindu minor under the Guardians and Wards Act, 1890, he cannot alienate the 
immoveable property of tiie minor without the sanction of the Court, not even in a case of 
necessity. If he does so, the alienation is voidable at the option of the minor (i). Where 
a Court has sanctioned the alienation under the Guardian and Wards Act, the alienee 
can rely upon the order of the Court and need not prove the actual legal necessity. The 
omission of the mention of any legal necessity in the order is only an irregularity (m). The 
powers, however, of the natural guardian of a Hindu minor are larger than those of a 
guardian appointed under that Act : a natural guardian may alienate the minor's property 
even without the sanction of the Court, provided the alienation is one for necessity or 
for the benefit of the estate. The Guardians and Wards Act, 1890, does not alter or 
affect the rights of natural guardians under the Hindu law (ti). But once a guardian 


(c) PandhaTinath v. Ham 'handra (1931) 33 Horn. 

L. H. 104, 130 I. C. 594, (’31) A. H. 157. 

(/) Pam Jash Aganvala v. Chand Mandal 
(1937) 2 Cal. 704. 

{(j) Kruhna Chandra v. 2?afa» Pam (1915) 20 
C. W. N. 645, 047, 35 I.C. 073, ('10) A. C. 
840 ; Hcmraj v. SaUm (1935) 59 £oni. 525, 
157 I. C. 406, (’35) A. B. 295 [F.B.l. 

(/■') JJemra} v. Kathit (1935) 59 Bom. 525, 157 
I.C. 400, (’35) A.B. 295 [F.B.l. 

(i) Punnayyah v. Viranna (1922) 45 Mad. 425, 

70 I. C. 608, ('22) A. M. 273. 

(j) Pagho V. Zaga (1929) 53 Bom. 419, 118 I. C. 

555, (’29) A.B. 130. 

(i) Kandhia Lai v. Mima Piii (1898) 20 All. 


13j ; Raghaomt'' v Indarjit (1923) 45 
AU. 77, 09 I.C. 083, (’22) A. A. 520. 

(/) Guardians and Wards Act, 1890, ss. 29-30 ; 
Sinaya v. Munviumi (1899) 22 Mad. 289 ; 
Tejpal Y, Ganga (1903) 25 All. 59 Iwliere 
the guardian appointed by the Court >ias 
al«o the natural guardian]. 

(m) Palaji Vasudeo v. }Sadashiv Kaskinath (1937) 
Bom, 1, 38 Bom. L. R. 790, 105 I. C. 
530. (’30) A. B. 389. 

.'«) Pamchander v. Brojonath (1379) 4 Cal, 929 
[F B.j ; Kanti Chunder v, Bishesuar 
(1898) 25 Cal. 585 [F B.] : Manishankar v. 
Bai MuH (1888) 12 Bom. 086; Sham 
Das "V. Umer Dxn (1030) 11 Lah. 312, 
126 I. C. 788, (’30) A. L. 497. 


S.528 



594 


HINDU LAW. 


Ss. 

528, 529 


lias been appointed by the Court, the rights of the natural guardian are extinguished (o). 

Limitation . — A suit by a ward who has attained majority to set aside a transfer of 
property by his guardian must be brought within three years from the date when the 
ward attains majority ; the Indian Limitation Act, 190S, Sch. I, art. 44. A transfer by 
a guardian is not void, but voidable at the instance of the ward ( 7 )). 

Alienaiion by manager oj joint family of undivided interest of minor coparceners . — 
Sc-e secs. 242 to 244. 

529. Contracts by natural guardian. — i^) The natural 
guardian has power to enter into contracts and to ao all other 
acts which are reasonable and proper for the protection or 
benefit of the minor's property and for the advantage of the 
minor (q). A decree can be passed against a minor’s estate 
on a deed of maintenance executed by the guardian in favour 
of the minor’s paternal grand-mother (r). But the guardian 
cannot in any case bmd the minor by a personal covenant (s) 
though the minor’s estate may be hable (i) [ill. (a)]. Even 
on a promissory note executed by a guardian intending to 
exclude his own liability and to make the minor’s estate liable, 
a decree may be passed against the estate if the debt is otherwise 
binding (i<). Though this was doubted {v), it is now approved 
by a Full Bench {w). 


{2) It is not Avithm the competence of the manager of a 
minor’s estate or withm the competence of a guardian of a 
minor to bmd the minor or the minor’s estate by a coyxtract for 
the purchase of immoveable property for the minor (r) [iU. (b)]. 
If the purchase is completed, but udth borrowed money, 
and it appears that there was no necessity to borrow the 
money or to buy the property, the lender is not entitled, in 
a suit to recover the money, to a decree against the minor 
personally or against his estate, after his death, though he 
is entitled to a decree for sale of the property and for pay- 
ment of the loan out of the proceeds of .sale of that property (y). 


(ol AruMi/jaiH V, (1914) 37 Mixd 38, 

12 I. C. 56S, ('14) A. M. C48. 

{})) Laxjnma v, linchappa (1918) 42 Bom 626, 
46 1 C. 22, ('18) A B. 180 ; FaU/appa v. 
Lumanna (1920) 41 Bom. 742, 58 I. C. 257, 
(’20) A B. 1 ,Bro]endrav.Promnna Kumar 
(1920) 24 C.W.X 1016, 59 I.C 589, ('20) 
A. C. 776 ; Lahha Mai v. Ma/ak Ham 
(1925) 6 Lab. 447, 89 I. C. 602, (’25) A L. 
619 ; Contra Bachchan Singh v. Kamta 
Prasad (1910) 32 All 392, 5 I. C. 585. 

( 5 ) -S'uhrawiania V. (1903) 26 Mad 303; 

SundaraTaja v, 7*a«arta 7'A«6amt(1894) 17 
Mad. 306 ; Sonu y. Dhondn (1904) 28 Bom 
330 : Krishna v. A’'a3a7na7u(101C) 39 Mad. 
915, 30 I. C. 574, (’16) A. M. 677 [pro- 
missory note by gnardian]. 

(?) Kondaqiafli Sudarsan Iluo v. PuUa Dalayya 
(1944) Mad. 218. 


(s) W'aghela v, Shelh Masladxn (1887) 11 Bom. 
551, 14 I. A. 89 ; lianmalsingh)i v. Vadilal 
(1896) 20 Bom. 61, 70 ; Surendra Nath v. 
Atul Chandra (1907) 34 Cal. 802; Lala 
A’arain Bus v. Bamamij (1898) 20 All, 
209, 25 I. A. 46. 

(/) SarhU Chandhwy v. Harnandan Sinqh (1933) 
12 rat. 112, 142 I.C. 38, (’33) A.P. 29. 

(m) MeenakshisundaramChettii v PangaAyyan- 
J7ar(1932) 139 I. C. 383', ('32) A. M 69G 
(r) Sivaminatha Odayar v. NaUsa Ayyar (1933) 
50 Mad. 879, 145 I. C 710, ('33) A.M. 710 
(?c) Saiyanarayma v. Mallayya (1935) 155 I. C- 
581 : llamnnaihan v. Palaniappa{’Z'd) Mad. 
770 • Annamalai v. Muihusamy ('39) A.M. 
538. 

(:»:) Mir Sarxva))an v. Falcrudin (1012) 39 
Cal. 223, 39 I.A. 1, 8, 13 I. C. 831. 

(y) Burrayya v, liuinayya (1924) 47 Mnd. 440, 
78 I. C. 90, (‘29) A M. 472 



GUARDIANSHIP. 


595 


In general a claim for specific performance of a contract to 
sell the joint family property entered into by the manager 
will not be decreed against the minors. But if fresh property 
has been purchased mth the amount reahsed and the minor 
takes a share in the property so acquired, he will not be allowed 
to repudiate the contract (z). 

(3) No act done by a person who is the guardian of a 
minor binds the minor, unless the act was done by him in his 
capacity of guardian. It is a question of fact in each case 
whether a particular act done by a person was done by him in 
his capacity of guardian or on his own behaK and on his own 
account. In the former case, the act binds the minor, provided 
it was otherwise within the power of the guardian ; in the latter 
case, it does not. The mere fact that the name of the minor 
is not mentioned in a contract, or in a deed of sale or mortgage, 
is not conclusive proof that the transaction was not entered 
into on behalf of the minor. In each case, the language of the 
document and the circumstances in which it was executed 
must be considered (a) [ill. (c)]. 

Illustrations. 

(a) The mother of a Hindu boy, My acting as his guardian, sells property belonging 
to the minor for purposes of necessity free of all Government claims for revenue. The 
deed of sale contains a covenant binding the minor and his heirs to indemnify the 
purchaser against any claims for revenue which the Government might make at any 
future time. Some time after the sale, the Government assess the land. The purchaser 
sues My who has then attained majority, upon the covenant contained in the deed. 
M is not liable on the covenant, the covenant being a personal one. Such a covenant 
is not valid and binding on a minor either under the English law or the Indian law: 
Waghela v. Shekh Masludin (1887) 11 Bom. 551, 14 LA. 89. See sub-sec. (2). 

(b) Ay as guardian of the estate of a minor, B, agrees to purchase immoveable pro- 
perty from C, on behalf of B. B on attaining majority sues C for specific performance. 
B is not entitled to specific performance, nor is G, See sub-sec. {2), 

(c) A dies leaving a widow, W, and a minor son, M. After A’a death W enters 
into possession of the property left by A, and manages the same as guardian of M. After 
some time, in consequence of certain disputes, Q applies to the Court to be appointed 
guardian of the person and property of My and he is appointed such guardian. Before 
G can obtain possession of il/’s property from IK, sells the property to P for Rs. 400, 
and conveys the property to P o5 her own ‘properly and not as that of the minor. Out 
of the Rs. 400, she applies Rs. 200 in satisfying a decree against the estate of her deceased 
husband, and the rest she spends for her own maintenance. M attains majority, and 


(r) Sohan Lai v. Atal Nath (1034) 56 All. 142, 
148 I. C. 229, (’33) A.A. 846. 

(a) Indur Chunder v. Radhakishore (1892) 
19 CqI. 507, 19 I. A. 90 [renewal of lease) , 
Nathit V. Balwanirao (1903) 27 Bom. 390 
[sale by mother] : Mvrari v. Tayana 
(1896) 20 Bom. 280, 288 ; TFfitson d; Co. 


V. Sham Lai (1887) 14 I. A. 178, 15 Cal. 
8; Nandan Prasad v. Abdul A2i2(1928) 
45 All. 497, 74 I. C. 367, (’23) A. A. 681 
[mortgage by mother as full owner]. See 
also Balwant Singh v. ClantT/ (1912) 39 
I. A. 109, 34 All. 296, 14 I.C. 629 [sale by 
brother). 


S.5£ 



5!)6 


HINDU LAW. 


Ss. 

529.532 


sacs P to recover the property from him. The sale i.s void altogether, and U is entitled 
to recover the property. The sale being absolutely void, P is not entitled to a return 
of any part of the purchase money, not even of the Rs. 200 applied by ir in payment 
of debts binding on the estate and therefore on M ; Naihu v. Balwanlrao (1903) 27 Bom. 
390. See sub-sec. (-I). 

(d) A decree obtained by a creditor against a Hindu wife in a suit to recover money 
lent to her to discharge her husband’s debts whilst the husband was in jail, is binding on 
the son though he w.as not a party to the suit. Tara Kiran v. f/ari (1928) 50 All. 447, 
108 I.C. 114, (’28) A.A. 251. 

530. Compromise by natural Sardian. — It is competent 
to a guardian to enter into a compromise on behalf of his 
ward (b). 


531. Acknowledgment of debt by guardian. — Before the 
enactment of the Indian Limitation Act, 1908, there was a 
conflict of decisions on this pomt. According to Bombay (c) 
and Madras (d) decisions, the natural guardian of a minor as 
well as a guardian appomted imder the Guardians and Wards 
Act, 1890, had the power to acknowledge a debt or to pay 
interest on a debt so as to extend the period of limitation, 
provided the act was for the protection or benefit of the 
minor's property ; but he had no power to revive a debt which 
was barred by limitation. According to Calcutta decisions, a 
natural guardian or a guardian appointed under the said 
Act had no power even to acknowledge a debt or to pay 
interest on a debt so as to extend the period of limitation (e). 
This conflict has been set at rest by sec. 21 (1) of the Indian 
Limitation Act, 1908, by which a lawful guardian is included in 
the expression, “ agent duly authorized in this behalf,” occurr- 
ing in secs. 19 and 20 of the Act. 

See the Limitation Act, 1908, sees. 19, 20 and 21, and the Indian Contract Act, 
1872, sec. 25. 


II.— TESTAMENTARY GUARDIANS. 

532. Guardians appointed by will.— (^) A Hindu father 
by word of mouth or by writing, nominate a guardian 
for his children, so as to exclude even the mother from the 
guardianship (/). The mother, however, has not the power to 
appoint a guardian by will (ff), but the Court may liave regard 
to her wishes, if any, expressed in her will. 


(f/) Wirtana^/a V. .Yirtwiaya (1885) 9 Boin 365. 
(c) ^nnapagauda v. Sangadigyava (1902) 26 
Bora. 221, 234 [F.B.I. 

(li) SobTianandri v, Sriramulu (1893) 17 Mad, 
221 ; Subramania v. Arumuga (1903) 20 
Mad. 330, 331. 

(e) Wajibun v. Kadir Buksh (1836) 13 Cal 292, 
295 ; Olihalo Ham v. Billo .dii (1899) 20 


Cal. 51, 52. 

to Debanand v. Armndmam (1021) 43 All. 213, 
59 I.C. 909, (’21) A.A. 346. See also 
Jar/annadlta v. Uamyamma (1921) 44 
Mad. 189, 62 I.C. 437, (’21) A.M. 132 
[guardian of son to be adopted) ; Budhilal 
V. Uorarji (1907) 31 Bom. 413 
(7) Vtnkaijm V. Venkata (1808) 21 Mad. 401. 



GUARDIANSHIP. 


597 


(2) The power of a testamentary guardian to deal with 
property belongmg to his ward is subject to the restrictions 
imposed by the will (h). 

(3) As regards guardianship ot joint family property, 
there is a conflict of opinion whether the father of a joint 
family consisting of himself and his minor sons has power 
to appoint a guardian by his will of the joint property during 
the minority of the sons. In an earlier Bombay case, it was 
held that he had no such power (i). In a later Bombay case, 
it was held that he had the power to appoint such guardian and 
also to authorize him to alienate the joint property, and that, 
where an alienation was made, it was binding on the minor sons, 
provided it was within the scope of the authority conferred upon 
him by the will (j). A FuU Bench of the Bombay High Court 
has now adopted the earlier view (k). In Madras, it has been 
held by a Full Bench that it is not competent to the manager 
of a joint Hindu family, whether he is the father or uncle or an 
elder brother, to appoint a testamentary guardian to the joint 
property (1). It is submitted that the father has no power to 
appoint a guardian by his will of joint family property. At the 
moment of his death the property passes by survivorship to 
his minor sons, and he cannot by any testamentary direction 
authorize any person to deal with it during the minority of the 
sons. But it has been held by the same High Court that if the 
testator has no sons, he may by his will authorize his widow to 
adopt a son to him, and appoint a guardian to manage his estate 
during the minority of the adopted son (w). The decision 
would no doubt be correct if the property disposed of by will was 
the self-acquired property of the testator. But it would be 
questionable, if the property disposed of was ancestral. 

See the Guardians and Wards Act, 1890, seca, 6, 7, 17 {2) and 39. 

The Court is bound, in appointing a guardian, to have regard to the wishes of the 
father contained in his will, although probate of the will has not been obtained (ri). 

The judgment in the later Bombay case [38 Bom. 94], referred to in sub-sec. (3), 
proceeds on the ground of convenience. The judgment in the Madras case proceeds 
upon the ground that since a Hindu cannot dispose of coparcenary property by will, he 


(fi) Guardians and Wards Act, 1890, s. 27. 

(») Sarilal v. .l/ani (1905) 29 Bom. 351. 

(;) Mahableshivar v Ramchandra (1914) 38 
Bom. 94, 21 I.C. 350, ('14) A.B. 300. 
Soobah Pirthce Lai v. Soobah Doonjah Lai 
(1867) 7 W.ll 73, at p. 75. See also 
Venkairaman v. Janard/ian (1928) 52 
Bora. ID, 28, 30, lOD I.C. 79. (’28) A B 8 , 

(k) Brijbhiikaii Das v. Ghasiratn (1935) 59 Bom. ' 


316, 155 I.C. 12, (’35) A.B, 124 [F.B.]. 

(/) Chidan^ra v. Rangasami (1918) 41 Mad. 

561, 45 I.C. 905, (’19) A.M. 1046 [K.B.l. 
(i/,) Jagaiinadha v. I{a7nayamma (1921) 44 Mad. 

189, 62 I.G. 437, (’21) A.M. 132. 

(w) Sarala Simdari v. JIazari Dasi (1915) 42 Cal. 
953, 23 I C. 972, (’16) A.C. 324 [mil made 
by husband containing directions about 
guardianship of his minor wife). 


S. 532 



598 


HINDU LAW. 


Sb. 

532-535 


cannot make arrangements for the management of that property by will after his death, 
or appoint a guardian to manage that property (o). 

Transfer of power of management by father , — Where the father of a joint family 
consisting of himself and his minor sons appointed his nephew to manage the joint family 
property for a period of thirteen years, and the manager was under the arrangement liable 
only to pay a fixed sum in lieu of actual income, and the father died before the expiry 
of the period, it was held that the eons were not bound by the arrangement and that 
the manager was liable to account for the whole of the income after the father’s death (p). 

III.— GUARDIANS APPOINTED BY THE COURT. 


533. Power of Court to appoint guardian. — (i) ^\lierethe 
Court is satisfied that it is for the welfare of a minor that an 
order should he made appointing a guardian of his person or 
property, or both, the Court may make an order under the 
Guardians and Wards Act, 1890, appointing a guardian. (See 
sec. 4 (4) and (5), and sec. 7 of the Act). Where the father 
has appointed a testamentary guardian, the Court has no 
power to appoint a guardian imder sec. 7 of the Guardian and 
Wards Act {q). 

A father being the natural guardian of his minor son cannot be appointed guardian 
of the person of the son and no order under sec. 7 is necessary (r). 

(2) Nothing in the Guardians and Wards Act, 1890, shall 
affect, or in any way derogate from, or take away any power 
possessed by a Chartered High Coiut. See sec. 3 of the Act. 

534. Guardian of person. — (i) In appointing the guar- 
dian of a minor, the Court shall be guided by what, consis- 
tently with the law to which the minor is subject [s. 518], 
appears in the circumstances to be for the w'elfare of the minor. 

(2) In considering what wdU be for the ^yelfare of the 
minor, the Court shall have regard to the age and sex of the 
minor, the character and capacity of the proposed guardian 
and his nearness of Idn to the minor, the wishes, if any, of a 
deceased parent, and any existing or previous relations of 
the proposed guardian with the minor or his property. 

(3) If the minor be old enough to form an intelhgent 
preference, the Court may consider that preference. 

See the Guardians and Wards Act. 1890, sec. 17. 


535. Guardian of minor’s separate property. — ^The only 
property of a minor of which a guardian can be appointed 
under the Guardians and Wards Act, 1890, is the separate 
property of the minor. A guardian cannot be appointed 


(o) Chidam^ara v. liangasami (1918) 41 Mad. 
561, 570, 572, 45 I.C. 905, (*10) A. M. 
1046 [F.B 1. 

(n) Vtnkatranxan v. Janardhan (1928) 52 Bom 
16, 106 I.C. 79, (’28) A.B. 8. 


(?) AmiHhavalliammil v. Siromaiit Ammai 
(1938) Mad. 757. 

(r) V enkatmearan v. Saradainbal (1035) 13 
Rang. 590, 160 I. C. 878, (*36) A. R. 67, 



GUABDIANSHIP. 


599 


under that Act of the undivided interest of a minor in copar- 
cenary property in cases governed by the Mitakshara law. 
The reason is that the interest of a member of a joint Mitak- 
shara family is not separate or individual property (s). See 
sec. 519 above. 


536. Alienation by guardian appointed under the Guardians 
and Wards Act, 1890. — guardian appointed by the Com-t 
under the Guardians and Wards Act, 1890, has no power to 
alienate the minor’s property without the previous permission 
of the Court. An alienation without such permission is void- 
able at the instance of the minor and other persons affected 
thereby. [See secs. 29 and 30 of the Act.] Where an aliena- 
tion is made with the permission of the Court it cannot be 
impeached by the minor or any other person except in a 
case of fraud or underhand dealing. The reason is that the 
ahenee is entitled to trust to the order of the Court, and he is 
not bound to inquire as to the expediency or necessity of the 
ahenation for the benefit of the minor’s estate (t). See sec. 519 
above. 


537. Guardian of minor’s undivided coparcenary interest.— 
Although a guardian cannot be appointed of the undivided 
interest of a minor in joint family property under the Guardians 
and W'ards Act, 1890, a Chartered High Court may, in the 
exercise of its inherent ])oicer, appoint the managing member 
of the family to be guardian of such interest where such 
appointment is clearly for the benefit of the minor, with power 
to him to alienate the joint family property including the 
minor’s interest therein, and, where the property is to be sold, 
impose conditions upon the managing member to secure 
the minor’s share of the proceeds of the sale. This is the 
practice in Bombay (m) and Calcutta (n). In a recent Allaha- 
bad case, the High Court, while holding that it had the 
power to appoint a guardian, refused to do so on grounds of 
inexpediency and want of precedent (w). See sec. 519 above. 


(j) Gharib-ullah v. Khalak Singdi (1903) 25 All, 
407, 416, 30 I. A. 105, 170; KanKar V. 
JHaru (1909) 32 Mad. 139, 1 I.C. 109. 

(0 Ganga-pershad v. Maharani Bibi (1884)11 
Cal. 379, 383-384, 12 I.A. 47, 49 50 
[mortgage] ; Sxkhct Chund v. JDulputtii 
(1880) 5 Cal. 303 [sale]; Venkaiasami v. 
Viranna (1922) 45 Mad. 420, 05 I.C. 
964, (’22) A.M. 135. See also Jugal v. 
Anunda (1895) 22 Cal. 545 (suit for specldc 
perfo.^'manre against minor — see s. 441]; 
itanasharavi Das v. Almad (1910) 21 
C. W. N. 03, 37 I. C. 380, (’17) A.C. 235. 


(wi Mantlal Burgoian, In re (1901) 25 Bom. 
353 ; Jagannuili Raingij In re (1895) 19 
Bom. 96 ; Jairam Laxmm, In re (1892) 
16 Bom. 634. See remarks of Kania, J., 
In In re Dattalraya Goiind Haldanl^r 
(1932) 66 Bom. 519, 141 I. C. 697, (’32) 
A.B. 537 explaining 25 Bom. 353. 

(v) nari Narain Das, In re (1923) 50 Cal. 141, 
74 I.C. 244, (’23) A.C. 409 ; In re 3ija>/ 
Kumdrsingh Buder (lQ32] 59 Cal. 670, 138 
I C. 739, (’32) A.C. 602. 

(w) Govind Prasad, In the tnalier of (1928) 60 
AU. 700, 112 I.C. 873, (*28) A.A. 709. 


Ss. 

535.537 



600 


HIXDU LAW. 


St. 

537,538 


niuflraltons. 

(a) A, and his minor eon B. are membtr.s of a joint family governed by the Mitak- 
shnra law, The only property which the family po=se!!Ses is a house which is in a very 
bad etate of repair. Besides, there are family debts which have to be paid, but the 
family has no means either to effect the repairs or to pay the debts. C offers to buy 
the house at Rs. 40,000, provided A obtains the sanction of the High Court for the sale 
on behalf of his minor son B. A cannot apply for the sanction unless be gets himself 
appointed guardian of B's property. A thereupon appUcs to the Court that he maybe 
appointed guardian of B's property, and that the sale be sanctioned by the Court'. It 
is proved to the satisfaction of the Court that, if the sanction be not given, the property 
IS not likely to realize a sum approaching Rs. 40,0(Xi. This is a fit case for the appoint- 
ment of .4 as guardian and for sanctioning the sale : Mnnilal Hargownn, in re (1901) 25 
Bom. 353. 

(b) The facts are the same as in ill. (a) with this difference that .4 does not propose 
to sell the property, but to raise a loan on a mortgage of the property. Tt is proved to 
the Eatiafaetion of the Court that if the mortgage is sanctioned by the Court, better 
terms can be obtained from the mortgagee than without the sanction. The Hgh Court 
may appoint .4 guardian of B's property, and sanction the mortgage : Jairirm Laxmon, 
in re (1892) 16 Bom. 634. 


IV.-GUARDIAN DE FACTO AND GUARDIAN AD HOC. 

538. Alienations by guar^an de facto and guardian ad 
hoc. — (i) A de facto guardian is one who manages the minor's 
estate, such person beuig neither a natural guardian nor a 
guardian appointed by the Court. 

(2) A de facto guardian has the same power of alienating 
the property of his ward as a natural guardian (x). A bona 
fide mortgage executed by the de facto guardian of a Hindu 
minor for the benefit of his estate and with due regard to his 
interests caimot be impeached on the sole ground that he is 
merely a de facto guardian {y), for example, if it is effected for 
the marriage of the minor's sister {z). The High Courts of 
Bombay (a) and Madras (b) have held that a sale by a step- 
mother, though she wa.s in eacli case the de facto manager of 
the minor’s estate, is a sale by an unauthorized person, and is 
therefore void. The c|uestion as to tlie validity of a mortgage 
by a step-mother aro.se before the Judicial Committee in 
Buriseedhur v. Bindeseree (c), where it Ava.s held that the 


Izj Uunooman Persaud v. ^Iwssumal Babooee \ 
(1856) 6 M, I. A. 393, 412-433; Beetha- \ 
ratnanna v. Ap'piah (1926) 49 Mad. 768, 92 1 
I. C. 827. (’26) A.M. 457 [Bale by maternal ; 
uncle upheld] ; Zlohanund v. SoSur (1699) ' 
26 Cal 820 [sale bv paternal grandmother ! 
upheld] ; BaiAmni v. Bai Narvik (1875) i 
12 Horn. H. C. 79, 81 ; Lalla v, Koonicur 
(1880) 10 M. I. A. 454 [mortgage by step- ; 
mother held not binding on the ground 
that it was fraudulent] ; Nalhuram v. 
Bhonia (1690) 14 Bom. 562 [mortgage 
by father’s cousin upheld]. 

(y) Kundan Lai v. Bern Prasad (1932) 13 Lab. 


399, 137 I. C. 115, (’32) A. L. 293. 

(z) Sh€o Gorind v. Adhin (1933) 8 Luck. 

182, 140 I. C. 556, (*33) A. 0 31. 

(a) Limbaji v. Rahi (1925) 49 Bom. 576, 88 I.C. 

643, (’25) A. B. 499 [transferee entitled to 
benefit of s. 51 of the Transfer of Property 
Act, 1682]. 

(b) JVuroyanaH v. /luiutini (1924) 47 Mad. L. J. 

666, 84 I. C. 973, (’25) A.M. 260, ( omment ■ 
cd upon in Seetharamanna v. Ajypiah 
(1926) 49 Mad. 766, at pp. 773-774, 92 
I.C. 627, (’26) A. M. 457. 

(c) (1866) 30 M. I. A. 454. • 



GUARDIANSHIP. 


601 


transaction being fraudulent, tbe minor was not bound by 
it. But the power of a step-mother to alienate the minor’s 
property as a de facto guardian was not questioned. The 
Bombay decision has since been overruled by the Full Bench 
decision of the same Court {d). It is submitted that the earlier 
Madras decision is wrong. 

(3) An alienation by a de facto guardian, which is neither 
for necessity nor for the benefit of the estate of the minor, is 
not void, but only voidable, and it may therefore be ratified 
on the minor attaining majority (e). 

(4) A sale by a guardian ad hoc, e.g., by a separated uncle 
who has never intermeddled or acted as a guardian, is void (/). 

538A. The paternal grand-mother is not a natural guardian 
of a Hindu minor. — As a de facto guardian she caimot 
create any obligation on the minor’s estate, by executing a 
promissory note in renewal of a promissory note executed by 
the minor’s father (g). 

538B. De facto guardian of lunatic.— The de facto manager 
of the estate of a lunatic has no power to alienate his property 
for necessity (h). 

V.— REMEDIES. 

539. Procedure for recovering custody of minors. — A 
guardian, who has been deprived of the custody of his ward, 
has the following remedies open to him ; — 

(1) He may proceed by suit against the person alleged 
to be hi wrongful possession of the ward. 

In Besant v. Narayaniah (i), where a suit was brought 
by a Hindu father in the District Court of 
Chinglepat for the custody of his minor sons, their 
Lordships of the Privy Council said : ‘’A suit inter 

partes is not the form of procedure prescribed 
by the Act [that is the Guardians and Wards 
Act, 1890] for proceedings in a District Court 
touching the guardianship of infa.nts.” Following 
this decision it has been held b}’’ the Madras High 


(d) I'liUitlas V. Vaqhela llaisinqhD (1933) 57 
Bom. 40, 141 1.C. 17, ('33) A.B. 15. 

(«) Seelharaminnn v. Appiuh (1920) 49 3Iad. 

708, 92 I.C. 827, (’20) A M. 457 
(/) Harilal v, Oordhan (1927) .'>1 Boin. 1040, 
105 I.C. 722, (’27) A.B Oil [transferee 


entitled to benefit of s. 51 of the Transfer 
of Property Act, 1882]. 

(y) yaqindas Gohddas v. Bhvnrao Damu (1943) 
Bom. 117, 205 I.C. 44. ('43) A B 44 
(A) Kanhavtalal v. Haninqh (1944) Naj: 098. 

(t) (lUU) 41 t A 314, 322. 38 Mad. 807, 820, 
24 I.C. 290. ('14) A PC. 41. 


Ss. 

538,539 



602 


HINDU LAW. 


S.539 


Court that the proper procedure in proceed- 
ings in a Mufassal Court touching the custody 
of a minor is by way of petition under sec. 25 of 
the Act, and not by way of suit (j). On the 
other hand, it was held by the High Court of 
Bombay (k), that the dictum of the Privy Coimcil 
in Besant's case was not intended to be of such 
general application as to take away the right of suit 
in all cases, that the provisions of the Guardians 
and Wards Act, 1890, were not exhaustive, 
and that a suit for the custody of a minor lies even 
in a Mufassal Court. The Chief Court of the 
Pmijab (1) and the Allahabad High Court (m), have 
held that a petition is the only form of procedure 
allowed m matters relating to the custody of 
minors. 

(2) He may proceed by a ftuit of habeas corpus, in 
cases where the ward is within the limits of the 
ordinary original civil jurisdiction of the High 
Court of Bengal, Madras or Bombay and has been 
unlawfully restrained [the Code of Crimmal Proce- 
dure, 1898, s. 491], 

For the case where a minor is confined under such circumstances that the confinement 
amounts to an offence, see see. 100 of the Code of Criminal Procedure, 1898. For the 
case where a female minor has been detained for an unlawful purpose, see s. 552 of that 
Code. 


(j) SafAi v./iaTiwzikii (1919) 42 Mad. 047, 53 I.C. I 
399, (’20) A.M. 937 [F.B.l, Pce also ' 
Ibrahim v. Ibrahim (1916) 30 Mad. 608, 
33 I.C. 894, (’17) A.M. 612. 

(it) Arhratlal v. Chimanlal (1010) 40 Bom. 600, 
37 I.C. 215, (’16) A.B. 129, following 


Shanfa v. iluriekhan (1901) 25 Bom. 574. 
(0 Ghanita v. Wazira (1896) Punj. Bee. No. 41 
[F.B.]. 

(m) Sham Lai v. Bhindo (1904) 26 All. 594 : Utma 
Kuar V. Bhaqicavta Knar (1915) 37 All. 
515, 29 I.C. 416, (’15) A.A. 199. 



603 


CHAPTER XXV. 

MAINTENANCE. 

“ The aged parents, a virtuous wife, and an infant child must be maintained, even 
by doing a hundred misdeeds.” — Manu cited in the Mitakshara. 

CONTENTS. 

1. — Nature and extent of right of maintenance — ss. 540-544 A. 

II . — Persons entitled to maintenance — ss. 545-565. 

III. — Amount of maintenance — ss. 566-568. 

IV. — Transfer of family property and its e.ffecton tight of maintenance — ss. 569-572, 

V. — Transfer of family dwelling-house and its effect on the right of residence — ss. 673-675. 

VI. — Right of maintenance not affected by will — s. 576. 

VII. — Transfer and attachment of right of maintenance — as. 577-578. 

VIII. — Suit for maintenance — ss. 579-581. 

I.— NATURE AND EXTENT OF RIGHT OF MAINTENANCE. 

540. Priority of debts over maintenance, — Debts con- 
tracted by a Hindu take precedence over the right to mainte- 
nance (n) [s. 570]. 

541. Liability for maintenance of two kinds. — The liability 
of a Hindu to maintain others arises in some cases from the 
mere relationship between the parties, independently of the 
possession of any property [s. 542]. In other cases, it depends 
altogether on the possession of property (o) [ss. 543-544]. 

542. Personal liability : liability of father, husband and son.^ 
A Hindu is under a legal obligation to maintain his wife, 
his minor sons, his unmarried daughters, and his aged parents 
whether he possesses any property or not. The obligation 
to maintain these relations is personal in character, and arises 
from the very existence of the relation between the parties (p). 

Thus, the ouly persons who are under a personal obligation to maintain others are — 

(1) the father, who is bound to maintain his minor sons and unmarried daughters ; 

(2) the husband who is bound to maintain his wife ; and 

. (3) the son who is boimd to maintain his aged parents. 

It is clear from what has been stated above that a Hindu is not under a personal 
obligation to maintain his grandchildren. Nor is he under any such obligation to main- 
tain his sister, his step-mother, his daughter-in-law, or his sister-in-law, though the 
•bligation to maintain them may arise from possession of property, as will appear from 
the two following sections. 

(n) jldftiranfie V. SAona itfaZce (1876) 1 Cal. 365; | (o) Sariiribai v. Luxmibai {1Q78) 2 Bom. 573 

Lakshman v. Satyahhamahai (1878) 2 Bom. I at p. 697, ti seq. [F.B.l. 

494, 505. I ip) (1876) 2 Bom. 573, 597-598 IF.B.l, supra. 


Ss. 

540.542 



604 


HINDU LAW. 


Si. 543. Liability dependent on possession of coparcenary 

5^, M4 property: liability of manager. — (^) The manager of a joint 
iMitaksbara family is under a legal obligation to maintain all 
male members of the family^ their wives and their children (q). 
On the death of any one of the male members, he is bound 
to maintain his widow and his children (r) s. [.559]. The 
obligation to maintain these persons arises from the fact 
that the manager is in possession of the family property. 

(2) The same principles apply to cases governed by the 
Dayabhaga law. But in applying these principles, it is to be 
remembered that there can be no coparcenary according to 
that law between a father and sons [s. 277] ; and, further, that 
on the death of a coparcener without lea\Tng male issue, his 
widow succeeds to his share in the coparcenary property as 
his heir [s. 281]. According to the Mitakshara law. she is 
entitled to maintenance only (s). 

AccoidiBg to both the schools, a father is tmilcr a personal obligation to maintain 
his minor .sons. But where the father has ancestral property in his hands, then if the 
case is governed by the Jlitakshara law, sons, even if adult, are entitled to maintenance 
out of the ancestral property [s. 545], but not if the case is governed by the Dayabhaga 
law, for under that law sons do not acrjuire by birth any interest in ancestral property 
[6. 273]. 

As to impartible property, see s. 589. 

544. Liability dependent on possession of inherited property : 
liability of heirs. — An heir is legally bound to provide, out of 
the estate which descends to him, maintenance for those persons 
whom the late proprietor Avas legally or morally bound to 
maintain. The reason is that the estate is inherited subject 
to the obligation to proAude for such maintenance (t). 

llluslralioas. 


(a) lister. — A Hindu is under no personal obligation to maintain his sister, but if 
he inherits his father's estate, he is bound to maintain her out of that estate, she being 
a person whom his father was legally bound to maintain as his daughter, provided, of 
course, that she is unmarried [s. 542]. 


(b) Step-mother. — A step-son is under no personal obligation to maintain his 
step-mother ; but if he inherits his father's estate, he is bound to maintain her out of 
the estate, she being a person whom his father was legally bound to maintain as his 
wife : Bai Daya v. Naiha (1885) 9 Bom. 279; j!iarbadabai v, Mahadev (1881) 5 Bom. 99. 


(c) Mother-in-law. — A dies leaving a widow B and a mother C. B is under no 


personal obligation to maintain her mother-ii 


iq) Manu, chap. 0. fccc. 108 : Xara<I.a, fljap. 13, | 
Fees. 2b, 27. 28, ‘6’A ; Vaikuntam v. 
Kallupiram (1000) 23 MaU. 512, 51C ; 
Cherullu alias Tasu v. /{angamr-arambil 
fiamu aliaF KuUaman (1940) Mad. 830. 
(*40) A,M, GG4. 

(r) bUaejaan Sxnqh v, Kewal Kaur (1027) 


i-law C ; but if she inherits property from 


o Lah. 3G0, 101 I.C. 201, (’-7) A.L. 28. 
(') Miinjappa v. Lakshmi (1801) 15 Bom. 234 i 
Jiaiifjo V. Yamunabat (1870) 3 Bom. 44-49. 
(() Jibrtramnniw (1SG9) 2 Beng. L.R. 

A C 15, 34, 38 [F B.] : i'amiini v. Chandra 
(lS00)17C’al 373. 37G-378. 



MAINTENANCE. 


€05 


A, she is bound to inaiutain C, she [C] being a person ivhom A was legally bound to 
maintain as his mother : Bai Kanlti v. Bai Jadav (1884) 8 Bom. Ij. 

(d) Daughter-in-Jaic. — A dies leaving a window and a father F. He leaves 
no property\ Is F under any obligation to maintain his destitute daughter-in-law W ? 
Yes, but the obligation is only a moral one, so that he may refuse to maintain her. ^suppose 
now that F dies leaving a widow B. On F's death, ^ inherits his estate as his heir. B 
now comes under a legal obligJition to maintain ir out of the estate, she being a person 
whom the late proprietor {i'’) was morally bound to maintain (u). See sec. 564 below. 

544Ai Liability of the Crown. — Tlie obligation to main- 
tain extends even to the Crowm when the Crown takes the 
estate by escheat or by forfeiture (v). 


II.— PERSONS ENTITLED TO MAINTENANCE. 


545. Sons. — (i) A father is under a personal obligation 
to maintain his minor sons ; therefore, he is bound to main- 
tain them even out of his separate or self-acquired property. 
But he is under no such obligation to his adult sons ; therefore, 
he is not boxmd to maintain them out of property which belongs 
exclusively to him {iv). 

If the father and sons are members of a joint family 
governed by the Mitakshara law, and there is joint family 
property, the sons, even if adult, are entitled to maintenance 
out of the joint property. The reason is that under the 
Mitakshara law, sons take a vested interest in joint family 
property by birth [x). The liability to maintabi an adult 
son is not limited to the income of what would have been 
his share on a partition of the joint family propeify {y). 

But the sons do not, in cases governed by the Dayabhaga 
law, acquire any interest by birth in ancestral property 
[sec. 273, 274], A father, therefore, under the Bengal school, 
is not bound to maintaiu his adult .sons either out of his separate 
or out of ancestral property. 

(2) A son who is entitled to sue for partition can sue for 
mamteoancelz). Where he cannot sue for partition, without the 


(uj Janii V. Nandrani (IHS'J) H AH. , | 
liaiunikanta Pal v. SajanviHiulafee 
iVJZ4) Cl Cal. 221, 01 l.A, 2'J. 147 I 
438, ('34) A. Be. 2iJ ; Jlunyainnud v. | 
EAJiammal {189U) 22 Mad. 3or<, 
ftj M-il.Gdab Eoonn'ar v. ('allvdor of JifUdfn 
11847) 4 M T.A. 21(5. 

1 wl Auinuikannu v. Aiii>u (1H8B) n 91; 

Prt'riictian'l v. JIala>ib>-/tand j l',vu'A. 
I.-li. ApTi, 23; Kuin' hundrn v, !<iikara7n 
(J87b) 3 Bom. 34b, :J5U, 3Iil ; Jihotnalhi 
Salh ChakrahitTlx v iia^ania Jiwmrce 
DtOee (Vy.iij) (j.i Cal 1008, (’36) A C. £»50. 


(j:) See Eat itnbai v. I/uxiiiiibai (1876) 2 IJoin. 
573, 597 IF. 13.) ; Earluj Kuari v. Dcoraj 
Kuart (1886) 10 All. 272, 2«8, 15 l.A. 51. 
(i/) C/tanvirgaida v. Viatritl Maatblrute of 
7)A«m'ar (1927) 51 Bom. 12U, lOu l.C 575, 
C27) A.B. 91 [luuniii; scm— claim lor 
maintenauco of luoutic \shHe iu asvluiu 
— c'laim upheld though in extes!= ol luna- 
tic's share of incomc{. 

( 2 ) Ch*‘rutly alias v. Jlangamf*aranU;ii 

Jlamu alliH Kultanian (1940) ilad. 830, 
('40) A M. CG4, 


s*. 

544-543 



604 


HINDU LAW. 


Ss. 

543,544 


543. Liability dependent on possession of coparcenary 
property: liability of manager . — {!) The manager of a joint 
JVIitakshara famity is under a legal obligation to maintain all 
male members of the family, their wives and their children {q). 
On the death of any one of the male members, he is bound 
to maintain his widow and his children (r) s. [559]. The 
obligation to maintain these persons arises from the fact 
that the manager is in possession of the family property. 

(2) The same principles apply to cases governed by the 
Dayabhaga law. But in applying these principles, it is to be 
remembered that there can be no coparcenary according to 
that laAv between a father and sons [s. 277] ; and, further, that 
on the death of a coparcener without leaving male issue, his 
widow succeeds to his share in the coparcenary property as 
his heir [s. 281]. According to the Mitakshara law, she is 
entitled to maintenance only (s). 

According to both the schools, a father is under a personal obligation to maintain 
his minor sons. But where the father has ancestral property in bis hands, then if the 
case is governed by Che mtakshara law, sons, even if adult, are entitled to maintenance 
out of the ancestral property [s. 545], but not if the ease is governed by the Dayabhaga 
low, for under that law sons do not acquire by birth any interest in ancestral property 
[8. 273]. 

As to impartible property, see s. o.S9. 

544. Liability dependent on possession of inheritedproperty: 
liability of heirs. — An heir is legally boimd to provide, out of 
the estate which descends to him, maintenance for those persons 
whom the late proprietor was legally or morally bound to 
maintain. The reason is that the estate is inherited subject 
to the obligation to provide for such maintenance (t) . 

lllushalions. 


(a) fiisier . — A Hindu is under no 'personal obligation to maintain his sister, but if 
he inherits his father’s estate, he is bound to maintain her out of that estate, she being 
a person whom his father was legally bound to maintain as his daughter, provided, of 
course, that she is unmarried [s. 542], 


(b) Step-mother . — A step-son is under no personal obligation to maintain his 
step-mother ; but if he inherits his father s estate, he is bound to maintain her out of 
the estate, she being a person whom his father was legally bound to maintain as his 
wife : Bai Daya v. Natha (1885) 9 Bom. 279 ; Narbadabai v. Mahadev (1881) 5 Bom. 90. 


(c) Mother-in-law. — A dies leaving a widow £ and a mother C. B is under no 
personal oblig ation to maintain her mothcr-m-law C ; but if she inherits property from 


iq) Manu, chap. 9, eec. 108 : Xarada, duin. 13, ! 
Eec8. 2Q, 27, 28, 33 , VaiLuntain v. | 
KallariTam (1900) 23 Mad. 512, 316; ; 
Cheruttu alias \ asu v. Maiiffuinpurambtl 
Ramu alias Sutlainari (1940) Mad. 830. 
(’40) A.M. 664, 

(r) BhoffU'ttfi iSingh v. Mst. Kewal Kaur (1927) 


s hah. 300, 101 I.r,. 201, (*27) A.L. 28. 

(s) Mnnjappa v. Lakshmi (1891) 15 Bom. 234 ; 

Rarnjo v. Yamunabai (1879) 3 Bom. 44-49. 
(0 Khftramani v. Kashinalh (1869) 2 Bcng. b.R. 
A C. 15, 34, 38 [F.B.] : Kainmi v. (Jhandra 
(1890) 17 Cal 373, 37C-378. 



MAINTENANCE. 


C05 


A, she is bound to maintain she [C] being a person whom A was legally bound to 
maintain as his mother : Bai A'aniw v. Bai Jadav (1884) 8 Bom. 15. 

(d) Daugkter-iti-law. — A thes leaving a window IK and a father F. He leaves 
no property. Is F under any obligation to maintain his destitute daughter-in-law W ^ 
Y es, but the obligation is only a tuoral one, so that he may refuse to maintain her. Suppose 
now that F dies leaving a widow B. On F's death, B inherits his estate as his heir. B 
now comes under a legal obligation to maintain iV out of the estate, she being a person 
whom the late proprietor (F) was morally bound to maintain (u). See sec. 564 below. 


Ss. 

544.54S 


544A; Liability of the Crovm. — The obligation to main- 
tain extends even to the Crown when the Crown takes the 
estate by escheat or by forfeiture («). 


II.— PERSONS ENTITLED TO MAINTENANCE. 


545. Sons. — (i) A father is under a personal obbgation 
to maintain his minoT sons ; therefore, he is bound to main- 
tain them even out of his separate or self-acquired property. 
But he is under no such obbgation to his adult sons ; therefore, 
he is not bound to mauitain them out of property which belongs 
exclusively to him (w). 

If the father and sons are members of a joint family 
governed by the Mitakshara law, and there is joint family 
property, the sons, even if adult, are entitled to mamtenance 
out of the joint property. The reason is that under the 
Mitakshara law, sons take a vested interest in joint family 
property by birth (x). The liabibty to maintain an adult 
son is not limited to the income of what would have been 
his share on a partition of the joint family property {y). 

But the sons do not^ in cases governed bj the Dayabhaga 
law, acquire any interest by birth in ancestral property 
[sec. 273, 274]. A father, therefore, under the Bengal school, 
is not bound to maintain his adult sons either out of his separate 
or out of ancestral property. 

( 2 ) A son who is entitled to sue for partition can sue for 
maintenance (z). When* he caimot sue for partition, without the 


(w) Janki V. Naiidram (18S9) Ip All. 194; 
Jia)antkania Pal v. SajayiUundaree Dastc 
(1934) 61 Cal. 221, Cl I. A. 20. 147 I C. 
438, (’34) A. PC. 29 ; v. 

Echkammal il&QQ) 22 Mad. 3().-,. 

(t') Mu. Golab Koonwar v. Collector of Bnians 
(1847) 4M.T.A. 24G. 

(tc) A iiiniakaiinu v. A-ppu (1888) Jiad. 91, 
Premchand v. TIulashchand (1869) 4 Bens'. 
L K. Apt). 23 ; Ramf'handra \ Sakaram 
(1878) 3 Bom. 340, 350. \ BhoQ\ ath% 

2^alh Chakrabarix v. Basai\xa Jxmmrec 
Debee (1930) 03 Cal. 1098, (’ijo) a C. 550 


(x) See Saiitnbax v. Luximibai (1878) 2 Bom. 

573, 597 IF.B.] ; Sartaj Kuan v. Deoraj 
Kuari (1888) 10 All. 272, 288, 15 I A. 51. 

(y) Chanvtrgavda v. Dhtrut Maoistrate of 

Dharicar (1027) 51 Bum. 120, 100 T C. 57.5, 
(’27) A.B. 91 [lunatic >on — claim for 
maintenauce of limatic \shile m asylum 
— claim upheld though in excess of luna- 
tic’s share of income]. 

(e) Cfi^ruUy alias Tua-u v JIangamparambil 
Jiamu all IS Kuttaman (1940) Mad S30, 
(■40) A.M. 664. 



606 


HINDU LAW. 


Ss. consent of certain coparceners, a.s in Bombay {<*)- he is entitled 
545-548 to inaintenance out of the joint family property (5). 

546. Daughters. — A father is bound to maintain his 
unmarried daughters. On the death of the father, they are 
entitled to be maintained out of his estate' (c). 

A daughter on nrarriagc ceases to be a member of her 
father’s family, and becomes a member of her husband’s 
family (d). Thenceforth she is entitled to be maintained by 
her husband, and, after his death, out of his estate [sec. 559]. 

. If the husband has left no estate, her father-in-law, if he has got 
separate property of his own, is moralljy though not legally, 
bound to mamtain her ; but, after his death, she acquires a 
legal right to be maintained out of his estate on the jrriuciple 
stated in section 544 above. If she is unable to obtam 
mamtenanee from her husband, or, after bis death, from his 
family, her father, if he has got separate property of his ovm, is 
under a moral, though not a legal, obligation to maintam her. 
But it is not settled whether, after the father’s death, she 
acquires a legal right to be maiirtained by bis heirs out of bis 
estate. The High Court of Bombay has held that she acquires 
no such right (e). On the other hand, the opinion has been 
expressed by the High Court of Calcutta, that she does acquire 
such right, proHded she is imable to obtam lUxamtenance from 
her husband’s family (/). Recently the Madras High Court 
has held that a widowed daughter who is without means and 
whose husband’s family is miable to support her is entitled 
to he maiutained by her step-mother out of her father’s estate ( 5 '). 

See notes to sec, 544 above. 


547. Grandchildren. — A grandfather is under no personal 
obligation to maintain his grandsons or granddaughters (h). 


548. Parents. — A son is under a personal obhgation to 
maintam his aged father. He is also under a similar obligation 
to maintam bis aged mother, and lie is bound to maintain ber, 
whether or not he has inherited property from his father (f). 


(a) Apaji V. JiamcJuindra (1892) 16 Bom. 29. ' 
(fj) Bnupal V. Taianappa (1922) 46 Bom. 425 
64 I.C. 568, ('22) A.B. 292. 

(c) Bai Mangal v. Bat Rukhmini (1899) 23 Bom. 

291 ; Tulsha v. Qopal Rai (1884) 0 All. 632. 

(d) KaHic Chunder y. Saroda Sundari (1891) 18 

Cal. 642, 646. 

(e) Bat Mangal v. Bai Rukhmini (1899) 23 

Bom. 201, 


(/) Mokhada v. ^■undo Ball (1901) 28 Cal. 278, 
288, 

(> 7 ) Anttu&ai Ammal v. 5ant Bat Ammal (1941) 
Mad. 13, ('40) A.M. 804. 

(/t) Manmohini v. Balak Chandra (1871) 8 BenR. 
L.R. 22 ; Kalu v. KasMbai (1883) 7 Bom. 
127. 

(i) Bubbarayana v, Subbakka (1885) 8 Mad. 236 



MAINTENANCE. 


607 


Slep-mother .- — See s. 544, ill. (b). 

549. Fftmale members of a joint Hindu family. — As to 
maintenance of female members of a joint Hindu family, 
see sec. 543 above. 

550. Disqualified heirs. — Where a son or other heir is 
excluded from inheritance by reason of disability [s. 98], he 
is entitled to maintenance for himself and his family out of 
the property which he would have inherited but for the 
disability [s. 110]. 

551. Illegitimate sons. — The illegitimate sons of a Hindu 
may be divided into four classes, namely 

(1) Illegitimate sons of a Hindu belonging to one of the 

three higher classes by a dasi, that is, a Hindu 
concubine in the continuous and exclusive keeping 
of their putative father. 

As to the meaning of the word “ daai ” see sec. 43, nos. 1-3, note no. (4) on page 
36 abore. 

(2) Illegitimate sons of a Sudra by a dasi. 

(3) Illegitimate sons of a Hindu by a Hindu woman who 

is not a dasi. 

(4) Illegitimate sons of a Hindu by a non-Hindu woman. 

(1) The illegitimate son of a Hindu belonging to one of 
the three higher classes by a dasi is entitled only to maintenance, 
and not to any share of the hiheritance (Mit. ch. I, s. 12, v. 3). 
The right of maintenance attaches in the first instance to the 
separate property of the father (j). Where the father has 
left no such property, it attaches to property of the joint family 
of which the father was a member {k). Such a son is entitled to 
maintenance for life (i). 

(2) The illegitimate son of a Sudra by a dasi is entitled 
to a share after his father’s death in the separate property 
of his father (Mit. ch. I, s. 12, v. 2). WTiere the father has left 
no separate property, but was joint with his collaterals at his 
death, the illegitimate son is not entitled to demand a parti- 
tion of the joint family property in their hands, but he is 

(j) Roahan Singh v. IJalwa}it Singh (1900) 22 • Jliralal Zaxmandas v. Meghraj Bhikchand 

All. 191, 27 I. A. 51 ; Chuolurya v. Pwr- (1938) Bora. 779. 

kulad (1857) 7 M.T.A. 18. 

(k) Ananthaya v. Vishiiu U893) a 7 Mad. 160; 1 (1) y ilmoney Singh y. Baneshur (1S7Q) ^ C&l. Ql. 


Ss. 

5^-551 



COB 


HINDU LAW. 


S. 551 entitled aa a member of the family to maintenance out of that 
propert}'. His position in this respect is analogous to that of 
widows and disqualified heirs to whom the law allows main- 
tenance because of their exclusion from inheritance and from 
a share on partition, and the Court may, as in their case, award 
not only future but also past maintenance so far as it is not 
barred by the law of limitation, and may direct the same to be 
secured by a charge on the joint family property. Such main- 
tenance is payable to the illegitimate son for life (m). 

(3) The illegitimate son of a Hindu by a Hindu woman 
who is not a dasi is entitled to maintenance even if he be the 
result of a casual (w) or adulterous (o) intercourse. During 
his father's lifetime, he is entitled to maintenance agauist 
him (p). After the father’s death he is entitled to mainte- 
nance out of the separate property of the father. Where 
the father has left no such property, he is entitled to mainte- 
nance out of the estate of the joint family of which the father 
was a member {q). But the right of the illegitimate son to 
maintenance is personal to him ; it does not descend on his 
death to his offspring. Thus, if A dies leaving an illegitimate 
son B, and B dies leaving a son C, C is not entitled to mainte- 
nance out of A’s property (r). 

According to the Dayabhaga school, the right of such a 
son to maintenance ceases on his attaining majority (s) ; accord- 
ing to the iMitakshara school, it extends up to his death (t). 

(4) The illegitimate son of a Hindu by a non-Hindu 
woman is not entitled to maintenance under the Hindu law, 
but he may claim maintenance from his putative father under 
sec. 488 of the Code of Criminal Procedure, 1898. The right 
under that section, however, cannot be enforced against the 
estate of the father after the father’s death ; it can only be 
enforced during the lifetime of the father (u). 

(»n) Vdlaii/appa v. Xatarajan (1031) 55 : (1857) 7 M.I.A. 18. BUpra ; (1868) 12 

Mad. 1. 58 I. A 4012, 134 I.C. 1084, (’31) , M.T.A. 203, supra, (whore there was a 

A. PC. 204 jiHiiig Vellaiyappa v. Xata- remand) ; Eaja Panchat v. Zaltnt 

rajan (1927) 50 Mad. 340, 100 I.C. 655. SinyA (1878) 3 Cal. 214. 4 I. A. 159; ffar- 

(’27) A.M 380. 1 ffobind v Dharam (1884) 6 All. 329. 

(n) 3IuUusuiam!/ Jagavera v. V encaluAwara ' (r) Poshan Sinah v. Balwant Singh (1900) 22 

(1868) 12 Al.l.A. 203, 220 , All. 191. 27 I.A. 51. 

(o) Rahx V. Gotind (1875) I Bom 97 ; Firaro- (») Nxhnoneu Singhv. Baneshur (1879) 4 Cal. 91. 

mulhi V, Singaratelu (1877) 1 Mad. 306. ; (f) ffarso&ind v. iJAaram iSin^/*( 1884) 6 All. 329 ; 

Subramania v. Valu 0911) 34 Mad. 68, i Kuppa v. Singaraielu (1086) 8 Mad. 325. 

^5 I- C. 919. I (u) Lxngappa v. Esudasan (1904) 27 Mad 13 

(p) Ghana v. Gereli (1905) 82 Cal. 479 ; Kuppa I (Christian woman) : Sitaram v. Oanpat 

V. (1885) 8 Mad. 325 j U923) 25 BOm. L.R, 429, 73 I.C 412. 

(j) (1911) 34 Mad, 88. 5 1 0 919, supra , (’23) A.'B, 384 (Mahomedan woman). 



MAINTENANCE. 


609 


(5) In a Madras case it was observed that the illegitimate 
son of a Sudra by a dasi, who was not entitled to inherit, should 
be allowed only a compassionate rate of maintenance (v). 
In a later Madras case it was said that this view was not correct 
and that regard should be had in every case to the income 
of the estate left by the putative father and to the mode of 
life to which the son was accustomed in the lifetime of the 
father (w). 

The illegitimate son of a Hindu who is the result of an 
adulterous intercourse is in no case entitled to maintenance 
higher than the amount of the mcome which he would have 
got out of his share had he been a dasiputra (x). 

552. Illegitimate daughters. — There is no provision in 
Hindu law for the maintenance of illegitimate daughters (y) ; 
but they are entitled to claim maintenance from their putative 
father under sec. 488 of the Code of Criminal Procedure, 1898. 

^ This view is put on the ground that the expression “ dasiputra ” occurring in texts 
hearing on the subject applies only to an illegitimate son (pulra), and not to an illegitimate 
daughter. 

553. Concubine— A varuddhastri. — A Hindu is not entitled 
to transfer joint family property to an Avaruddhastri for 
her maintenance {z) nor is he bound to maintain her. He 
can discard her at any moment, and she cannot compel him 
to keep her or to provide for her maintenance {a). But if she 
was in his exclusive keeping until his death, his estate, in the 
hands of those who take it, is liable after his death for her 
maintenance (6). It is not a condition precedent to her right to 
maintenance that she should have resided in the same house as 
the deceased together with his wife and his family (c). But 
her right to maintenance is conditional upon her continued 
chastity [d). 

Avarucldhasiri. — In a Bombay case the High Court held that to constitute a concu- 
bine an avaruddlia stree she must be a concubine with whom the connection of the 
deceased paramour was open and recognized and who was kept by him in his house 
practically as a member of the family. But this view was rejected by the Judicial 


(i') Gopalasami v. Arunaclielain (1904) 27 31ad. 
32. 

(iv) Rathinasabapalhi v. Gopala (1929) 50 Mad. 

L.J. 673, 121 1.C. 126, ('29) A.M. 545. 

( 4 ;) Chamaia v. Iraya (1931) 33 Bom. L R. 1082, 
1089. 134 T.C. 1153, ('31) A.B. 492. 

(v) Parcali v. Qatipatrao (1894) 18 Bom. 177, 

183; Vellaiyappa v. Natarajan (1927) 50 
Mad. 340, 100 I.C. 655, (*27) A M. 386. 

( 2 ) Thakur Kab Prasad Situjh v. Chootay 
Munwar (1937) 12 Luck. 409, 164 I.C, 
1000, (*37) A. O. 29 


(fl) v. Buchamma (1900) 23 Mad. 

282. 

(5) Ninqarcddi, v. Lakshrr^awa (1002) 26 Bom. 
163 ; V}andavanda^ v. Yamunabai (1875) 
12 Bom. H.C.A.C. 229 ; Rama Raja v. 
Papamnial (1925) 48 Mnd. S05, 00 I.C. 
983, ^’25) A.M. 230. 

(c) Bai Xa'/ifbai v. Bai Monjfnbai (1926) 53 I.A. 
153, 50 Bom. 604, 96 I.C. 20. (’26) A PC. 
73, revcr-niu (1923) 47 Bom. 401, 69 I.C. 
291, (’23) A.'B. 130. 

((/) Yashvantrao v. Kashibai (1888) 12 Bom. 26.. 


Ss. 

551.553 



610 


HINDU LAW. 


Sb. 

553-555 


Committee on appeal, and it was held that residence in the same house with her 
paramour together with his w'ife anil regular family was not now necessary. \Yhatever 
may have been the case when a concubine was a slave of the household (e). 

Kept mistress whose husband is alive, — It has been held b}' the Bombay High Court 
that a married woman who left her husband and lived with another as his permanently 
kept mistress may be regarded as Avaruddha Stri if she remains faithful to him and she 
is entitled to maintenance from his €^state ao long as she preserves her sexual fidelity to 

Amount of maintenance. — In determining the amount of maintenance to be awarded 
to an avaruddhasiri the Court should have regard to her age, her past mode of life, and 
the extent of the estate of the deceased paramour (g). 


MAINTENANCE OF WIFE. 

553A. Statutory right of maintenance — ^The wife’s right to 
separate maintenance and residence is now regulated by the 
Hindu Married Women’s Rightto Separate Residence and Main- 
tenance Act, 1946 (see Appendix XIII). In the following sec- 
tion the law has been stated under the decided cases. 

554. Wife's right of maintenance. — (i) A wife is entitled 
to he maintained by her husband, whether he possesses 
property or not (A). When a man with his eyes open marries 
a girl accustomed to a certain style of living, he undertakes the 
obligation of maintaining her in that style (f). The mainte- 
nance of a wife by her husband is a matter of personal obli- 
gation arising from the very existence of the relation, and quite 
independen.t of the possession by the husband of any property, 
ancestral or self-acquired (y). The maintenance being a matter 
of personal obligation, she has no claim for maintenance against 
her husband’s property in the hands of a transferee from him. 
Nor has she any claim against the crown, if his property has 
been attached under secs. 87 and 88 of the Criminal Procedure 


Code, 1898, as the property of an absconder {k). 

Her remedy is to obtain a decree of a Civil Court creating a formal charge on the 
property (Z). 

(2) A wife is not entitled, during her husband’s life-time, 
to be maintained either by her relations or by her husband’s 
relations, even if she has been deserted by him, unless they 
have in their possession property belonging to her husband (m). 

555. Separate residence and maintenance. — (I) A wife’s 
first duty to her husband is to submit herself obediently to 
his authority, and to remain under his roof and protection {n). 
She is not, therefore, entitled to separate residence or mainten- 


(e) Bat A a^i/frai v But Mon'ihihai, supra. TIjc 
decision in Musatnmat Ilatdri v Narindra 
n926) 1 Lnok 184, 98 I C 677, (’26) A, 
O. 294, ]B no longer good law, 
if) Akku Pralkad v. Ganesh Pralhad (1945) 
Bom, 216. ^ 

{q) (1875) 12 Bom. H.C.A.C. 229. supra, 
ih) Nt^badabai v. Mahadeo (1881) 5 Bom, 99, 

(() Prem P*a*<*p Sinjh v. Jugar Pratap Kunvan 


(1944) All 118. 

(l) Jayanti v. Alamelu (1904) 27 Mad. 45, 48. 
(A) Chatm v. The Crown (1929) 10 l.nh. 265, 
111 I.C. 435, (’28) A li. 081. 

(/) Secretary of State for India v. Ahalyabat 
Sarayan (1938) Bom. 454, 40 Bom L R. 
422, 176 I.C. 453, (’38) A. B. 321. 

(wt) V. (1872) 9 Bom HC 283. 

(n) SUanalh v, JTaimabutty (1875) 24 W.ll. 377, 
379. 



MAINTENANCE OE WIFE,;' 


611 


ance, unless she proves that, by reason of his misconduct or S. 555 
by his refusal to maintain her in his own place of residence or 
for other justifying cause, she is compelled to live apart from 
him (o). Neither unkindness not amounting to cruelty [p), nor 
the fact that the husband has taken a second wife [q), nor 
ordinary quarrels between husband and wife (r), justify the wife 
in leaving her husband’s house. But she would be justified in 
leaving his house, and would be entitled to separate mainten- 
ance from him, if he kept a concubine in the house (s), or 
habitually treated her with such cruelty as to endanger her 
personal safety (i). She is not bound to prove repeated 
violence ; nor is delay in bringing the suit a ground for refusing 
the rehef {u). 

Where a husband who was on cordial terms with his wife made a gift of his property 
to his wife the ostensible purpose being her maintenance* it was held that the wife waa 
not a creditor and that the gift in her favour could not prevail against the rights of the 
creditors (v). 

(2) A wife bving apart from her husband for no improper 
purpose may at any time return and claim to be maintained 
by him. Her right is not forfeited, but is only suspended 
so long as she commits a breach of duty by living apart from 
him (w) ; so, where she subsequently comes back and offers 
to live with him, his refusal to take her back entitles her to de- 
mand maintenance. The suspension ceases when the husband 
dies. He cannot under the provisions of the Succession Act 
execute a Will to defeat such a right (x). The amount of 
maintenance to which she would be entitled depends on various 
circumstances, such as the past relations between the parties, 
their social standards and the husband’s property (y). Where 
the wife lived with her father who was in affluent circumstances 
and did not claim maintenance from her husband for a long 
time and the husband had no property, arrears prior to the 
date of demand were refused (z). 

Where a husband turned bis wife out of doors because he suspected her chastity 
and the wife obtained an order against him for maintenance under sec. 488 of the Code of 

(o) Sidlmgapa v. iSuiava (1878) 2 Horn. 034; 230. 

Nitye v. Soondaree (1808) 9 W.R. 475 {t) A/dtonjini v. (1892) 19 Cal. 84. 

[refusal to maintain); Sitabai v. Ham- («) Ude Sinyh v, Daulat JZaur (1935) 16 

c/iandrarao(1910) 12Bom.L.R. 373, 0 I.C. Lah, 892, 158 I.C. 223 , (’35) A. L. 386. 

525 [abandoninoiit of wife] : Shinappaya v. (^) Bnj Jiai Kmir v. Kam Dayal (1932) 7 Luck. 

Rajamma (1922) 45 Mad, 812, 69 I.C. 2.5, 411, 135 I.C. 369, f’32) A.O. 40. 

(’22) A.M. 399 [husband’s leprosy); 

Appibax V. Khuiiji Cooierji (1936) 60 (tc) Surampalli v. (1908) 31 Mad. 

Bom. 455, 38 Bom. L. 11. 77, 102 I. C. 338. 

188, (’36) A.C. 138. (x) Pervindfol v. Siinderamal (1945) Mad. 

(p) (1875) 24 W.ll. 377, sn/ira. 586, 

iq) Virasvami v. Aj^puscami (1863) 1 Mad H. {y) Appibax v. Khimji Cootnji (1936) 60 Bom. 

C 375. 455, 38 Bom L. R. 77, 162 I. C. 188, 

(r) /fajfniVi.v V. (1900) 4 C. W. N. 488. ('30) A, B. 138. 

(s) Go5im/v. DoM'taf (1870) 14 W.R, 451,; Bular (z) Soblumadramnia v. lYarasmAaiUjami (1934) 

Keen V. Dwurkanath (1905) 32 Cal. 234, 57 Mad. 1003, 150 I.C. 797, (’34) A.M. 401. 



612 


HINDU LAW. 


Ss. Criminal Procedure, 1898, and when she proceeded to execute the order, he filed a suit 
SSS'SSS restitution of conjugal rights, it was held that it was a proper case for refusing the 

husband a decree (o). 

556. Unchastity of wife. — A wife, wlio leaves her home 
for purposes of adultery, and persists in following a vicious 
course of hfe, forfeits her right to maintenance (6), even 
though it is secured by a decree (c). But it would seem that if 
she completely renounces her inunoral course of conduct, her 
husband is liable to furnish her with a bare ” (or what is 
also called “ starvmg ”) mamtenance, that is, food and raiment 
just sufficient to support her life (d). 

Starving mainte)iance . — In Parami v. Malmdti'i (c), Chandavarkar, J., after examining 
the original texts bearing on the subject, observed as follows : — 

“ The general rule to be gathered from these is that a Hindu wife cannot be absolutely 
abandoned by her husband. If she is living an unchaste life, he is bound to keep her in 
the house under restraint and provide her with food and raiment just sufficient to support 
life ; she is not entitled to any other right. If, however, she repents, returns to purity 
and performs expiatory rites, she becomes entitled to all conjugal and social rights unless 
her adultery was with a man of a lower caste, in which case, after expiation, she can claim 
no more than bare maintenance and residence.” 

See secs. 96 and 501. 

557. Change of religion by husband . — {!) A wife is 
entitled to mamtenance, though her husband may abandon 
Hinduism (/). 

(2) Where a marriage has been dissolved under the Native 
Converts’ Marriage Dissolution Act, 1866, at the suit of a 
husband who has abandoned Hinduism, the Court may by its 
decree order the husband to make such allowance to his wife 
for her mauiteuance durhig the remainder of her life as the 
Court thinks just. An allowance so ordered ceases from the 
time of any subsequent marriage of the I'.'ife. 

See the ^sative Converts’ Marriage Dissolution Act, 18G6, sec. 28. See also sec. 4-il 
above. 

558. Wife of disqualified heir. — Where the husband is 
excluded from hiheritance on accoimt of personal disability 
[s. 98], his wife is entitled to mamtenance out of the property 
which he would have inherited Imt for the disability. But 
her right to mamtenance is conditional upon her conthiued 
chastity {g). 

(a) Babu Itam v Mmaininai KuKla (1924) 46 
All. 210, 79 X C. 634 (’24) A A. 391. 
vt) llatay .Yarayaiian (1863) 1 Slad. H C. 372 ; 

Debx Saran v. Baulala (1917) 39 All. 234, 

.39 I.C. 10, (17) A. A. 86; Kandazami v, 

M urugamnial (1890) 19 Mad. 6, 

(c) (1896) 19 Mad, 6, supra. 


(d) See Paraini v. ^^ahad^^ i (1910) 34 Horn. 278, 

SIC. 9G0, and the case cited in the 
precedin'^ foot nole. 

(e) (1910) 31 Bern 278,233,5 1 0 060. 

(J) Mansfiu v. Jucan (1884) 6 All. 617. 

[g) Yashvanhui v. KafiJiibni {ISSS) 12 Bum. 20, 
28, Mitakshara, chap, ii, sec. 10, paras. 
14, 15, Dayabhaga, chap, v, para, 19. 



MAINTENANCE OF WIDOW. 


613 


MAINTENANCE OF WIDOW. 

559. Widow’s right of maintenance - — W A widow, who 
does not succeed to the estate of her husband as his heir, 
is entitled to maintenance — 

(i) out of her husband’s separate property (h) ; also 

(ii) out of property in which he was a coparcener at 
the time of his death (i). 

(2) A widow does not lose her right of maintenance out 
of the estate of her husband even though she may have lived 
apart from him in hi.s lifetime without any justifying cause 
and was living separate from him at the time of his death (j). 

Illustraiions, 

(a) A Hindu governed by the Mitakshara law d’es leaving a wdow and male 
issue. He leaves self-acquired property. The male i sue will inherit the property 
subject to the obligation to maintain the widow out of t it property. * 

(b) A and his father F are members of a joint family governed by the Mitakshara 
law. A dies leaving a widow and F. On A’s death, his undivided interest in the copar- 
cenary property lapses so as to enlaige the interest of F in the property. A’s widow is- 
entitled to be maintained by her father-in-law F out of the coparcenary property quoad 
the interest of A in the property. If F refuses to maintain her, she may sue him to have 
her maintenance cliarged on a portion of the joint property, such portion not exceeding 
one-half of the propertj', that being her husband’s share in the property : Jayanii v. 
Alamela (1904) 27 Mad. 45. 

(c) A and his brother B are members of a joint family governed by the Dayabhaga 
law. A dies leaving him surviving a widow ir, a son S, and a brother B. S yviW 
succeed to A’s separate property as well as his undivided interest in the coparcenary 
property (s. 78), subject to the obligation to maintain ?r out of the property. If A dies 
without leaving male issue, W will succeed to the whole of his property, joint as well 
as separate, in which case she will take a widow’s estate in .4’s separate property, and 
will be a coparcener with B as to the joint property with the right of demanding a partition 
of such property against B [s. 348]. 

Nature and extent of widow's right of viaintenance. — The only person who is under 
a legal obligation to maintain out of his own property the wudow of a deceased Hindu 
is her own son [s. 548]. As regards others, her only right to maintenance is out of her 
husband's estate. That estate may be in the hands of bis male issue as in ills, (a) and (c) 
or it may be in the hands of his coparceners as in ill. (b). But whether it is in the hands 
of the one or the other, he is liable to maintain her, not because he is under a personal 
obligation to maintain her, but because he has in his hands her husband’s estate. 
The property is liable for her maintenance and a charge may be created on it even if the 
property is attached and held by Government on the ground that the present holder has 
absconded (t). At the same time it is to be remembered that her maintenance is not 
ipso facto a charge upon her husband's estate [s. 509]. The estate be sold for her 
husband's debts, or, wliere it is the joint property of the family for debts binding on tbo 
family [s. 570]. Even if it is sold without any justifying necessity, she cannot follow it 
in the hands of a bona fide purchaser for value, unless she has acquired a previous charge 
on the estate for her maintenance (Z) [ss. 509-570], 


(/<) Brinda v. liadiuca (1885) 11 Cal. 492, 494 ; 
N arabadabai V . Maftadeo (1881) 5Boin. 99, 
106 ; BliaQabaii v. Kanailal (1871) 8 Bens. 
L. R. 225. 

(j) Deii Persad v. Gunivanli (1895) 22 Cal, 410 ; 
Jayanti v. Aiamelit (1904) 27 Mad. 45 ; 
Becha V. Mothina (1901) 23 All. 80; 
Adhibai v. Cursandas (1887) H Bom. 199 ; 
Shridar Bhaywanji Tdi v. Mst. SUabai 


(B 

(fc) 

U) 


(1938) Nag. 289, (’38) A. 19S. 
Surampalli v. Surampalli (1908) 31. Mad. 
388. 

Secretary of State for India v. Ahalyabai 
Narayan (1938) Bom, 454, 40 Bom. 
L. R. 422, 170 I. C. 453, (’38) A. B. 321. 
Kuloda Prosad v. Jageshar (1900) 27 Cal. 
194 *, Somaaundaram v. Vnnanuilai (1920) 
43 Mad. 800, 59 I.C. 398, (’20) A.M. 722. 


S. 559 



614 


HINDU LAW. 


Ss. 

559, 560 


Widow's nghis agntnst joint family propoly, — A and B are two brothers joint in toon, 
worship and estate. A dies leaving a widow W. It' has private, property of her own out of 
which she is able to maintain her.self. Is ir entitled to maintenance out of the income of 
tlie joint propeity which passed into the hands of B by survivorship on A’s death ? No 
according to the Calcutta High Court (m). Yes, according to the Madras High Court, subject 
to this that her private means should be taken into account in determining the quantum 
of maintenance to be decreed to her (n). According to the Madras High Court, the right 
of the widow of a coparcener in a Hindu family to maintenance is an absolute right 
due to her membership in the family and does not depend on any necessity arising from 
her want of other means to support herself ; she is therefore entitled to some maintenance 
out of her husband’s estate. 

Where a widow suing her husband's coparceners for maintenance has, at the time the 
suit is brought, sufficient joint family funds to provide her with maintenance for several 
years, the Court should refuse to decree maintenance to her, leaving her to 61e a fresh 
suit after that period (o). The same principle applies where she ought to have in her 
hands joint family funds which, however, are not available at the date of the suit they 
having been dissipated by her before suit (p). A widow inheriting some of her husband’s 
share of the joint family property under Hindu Women’s Rights of Property Act is still 
entitled to maintenance with reference to the other properties, but, in fi.ving the main- 
tenance the property inherited by her may be taken into consideration (q). 

A prior decree obtained by her against her husband during his life-time for mainten- 
ance is no bar to her claiming a right of maintenance and right of residence against the 
heirs (r). 

Where a widow sues for maintenance after partition among the coparceners of the 
joint family she is entitled to a decree only against those members who are in possession 
of her husband's share, such as her son (natural or adopted) and his sons and grandson («). 

Where a widow gets maintenance from the surviving members of the joint family 
to which her husband belonged, she is not assessable to income-tax even though there is 
a single surviving coparcener (1): Commissioaer of Income-tax v. Laxminarayan {1936) 
69 Bom, 618, 37 Bom. L. R. 692, 159 I. C. 424, (’35) A.B. 412. Where in a joint family 
consisting of females only the amount payable as maintenance to a widow is increased 
by an agreement the amount continues to be exempt from payment of income-tax («). 


560. Widow residing apart. — (i) A wife cannot leave her 
husband’s bouse when she chooses and require him to protdde 
maintenance for her elsewhere. But the case of a widow is 
different. A widow is not bound to reside with her husband’s 
family, and she does not forfeit her right to maintenance out 
of her husband’s estate by going to reside elsewhere, e.g., in 
her parent’s house (v). All that is required of her is that 
she must not leave her husband’s house for improper or unchaste 
purposes, and she is entitled to separate maintenance unless 
she is guilty of unchastity or other improper practices after 


(m) Ramaivatx v. Manjhari (1900) 4 Cal. L J. 74. 

(n) Lingayya v. Kanakamma 38 Mad. 153, 

28I.C. 200, (’16)AM 444 

(o) Dattatraya v, liukhmabai (1909) 33 Bom. 50, 

lie. 466. 

(p) 6’nrtti:apa v. Ammani (lOHl) 61 lljid. L.J. 

381, 134 I. C. 981, ('31) A M. 668 
(?) Sarojim Devi I'. Siifira/itnafiyam (1945) 
Mad 61, V \ / 

(r) Mt. SAam De^i V Mo/ian Lai (1934) 15 Lah. 
591,152T.C 600, ('34)A.L. 167. 


(«) ^yarasimliam v Venkatasubamma (1932) 65 
Mad. 7.52, 137 1. G. 749, (’32) AM. 351; 
Larntibttf G'anapairao y.Radhabhai Kris/i- 
naji (1945) Bom. 604. 

(0 Vedathanm v The CommiBfiioner of Income 
Tax (1933) 50 Mud. 1. 140 I.C. 17, (’82) 
A.M. 733. 

(m) Commissioner of Income Tax U. P. & C. P. 

V. Sarican Kumar (1945) All. 509. 

(v) Datlatraya Maruti v. Laxman Jutippa 
(1942) Bom. 584, 203 I.O. 189, (’42) 
A.B. 260. 



MAINTENANCE OF WIDOW. 


615 


she leaves that residence [w). Where the property is so small 
as not to admit of an allotment to her of a separate maintenance, 
the Court may, in the exercise of its discretion, refuse separate 
maintenance to her {x). 

[2) Wiiere the husband by his will makes it a condition 
that his wife should reside m the family house with his relatives, 
she is not entitled to separate maintenance if she resides else- 
where without just cause [y). Strained relations between herself 
and her husband’s adopted son on account of former litigation 
between them may be a just cause (yl)- 

560A. Arrears of maintenance. — A widow who has left the 
residence of her deceased husband, not for imchaste purposes, 
is entitled not only to maintenance, but also to arrears of 
maintenance from the date of her leaving her husband’s 
residence, though she does not prove that she has incurred 
debts in maintaining herself and gives no reasons for the change 
of residence (z). 

It is erroneous in law to fix the date of the ioidoxv*s suit as the starting point of 
maintenance. The proper date is the date on which ahe left ker husband’d residence. If after 
the husband’s death the widow has remained in his house and has accepted maintenajice 
in fact and in kind, she is not entitled to arrears from the date of her husband’s death 
except perhaps in an extreme case where she is kept under circumstances of extreme 
penury and oppression. Such a case, however, must be treated as most exceptional 
and would require unimpeachable proof. The Judicial Committee is extremely reluctant 
to interfere with the amount of a decree for maintenance unless there has been some 
miscarriage in the way the amount has been arrived at (a). Courts have got large discre- 
tion in awarding arrears (6) and may take into consideration the fact that a sudden 
demand for a large sum by way of arrears would be inequitable and embarrassing (c). 
In this case the High Court awarded arrears for 25 months against 12 years claim. The 
Court may for sufficient reasons refuse to award any arrears, or it may award arrears 
at a rate lower than that fixed for her future maintenance (d). Arrears at an enhanced 
rate should be allowed only from the date of the suit for enhancement (e). 

Where a widow was entitled under an agreement to maintenance at a certain rate 
to be paid on a particular date in each year and she dies some time before the time fixed 
for payment, her heir is entitled to recover the proportionate amount of maintenance 
due after the last payment till her death, for the right accrues from day to day (/). 


{u) lluja Pirthee iSimjh v Pujkooer (1873) 12 
Eeng. L.R. 238, 247 I A. Sup Vol. 203 : 
Narayanrao v. lia?/ial>ai (1870) 3 Bom. 
415, 421, 6 I.A. 114, 119; Ekradeshioari 
V. llomesUwar (1929) oO I.A. 182, 8 Pat. 
840, 116 I. C. 409, ('29) A.PC. 128; 

Kasiurbai v. ShivajiraM (1S79) 3 Bom. 
.372 , Gokibai v. Lakhmvtas (1890) 14 Bom. 
490 ; Suldessury v. Janardan (1902) 29 
Cal. 557. 

(ar) Goda>'ariba\v . Sa-/«/m6ai(1898) 22 Bom. 52 ; 
(1879) 3 Bom 372, supra , Ramcftandra 
V. ii'aaunabai (1830) 4 Bora. 261. 

(y) Mulji V. Bai Ujam (1889) 13 Bom. 218 ; 
Girianna v. Honaina (1891) 15 Bom. 230; 
2'inrouri v. Krishna (1893) 20 Cal. 15, 
(1929) 60 I.A. 182, 8 Pat. 840, 116 I.C. 
409, (’29) A PC. 128, supra 
(yl) JamtmaEuioa' v. A (1940) All. 
739, 143 IC. 27, ('41) A. A. 43. 


12 ) (1929) 56 I A. 182, 8 Pat. 840, 116 I. C. 409, 
('29) A.PC. 128. supra. 

(a) E^radeshwari v. Homeshwar (1929) 56 I. A. 
182, 8 Pat. 840, 116 I.C. 409, (’29) A.PC. 
128. 

(t) Ourshxddappa Parioatewwa (1937) Bom. 
113, 38 Bom. L. K. 1293, 167 I. C. 973, 
(’37) A. B. 135. 

(c) Dattatraya Maruthi V. Laxman Jutippa ( 1942) 
Bom. 584, 203 I.C. 139, (’42) A.B. 260. 
(<0 BafAubans v. Bhagvant (1899) 21 All. 13; 
Karbasappa v. Kallava (1919) 43 Bom. 66, 
47 I. C. 623, (’18) A. B. 122 ; Shndhar 
Bhagwanjn Teli v. AfsL St(a6ai (1938) 
Naff. 289, (’38) A. N. 198 ; Guni^ihiddappa 
V. Parwatewwa (1937) Bom. 113, 38 Bom, 
L R. 1293, 107 I.C. 973, (’37) A.B. 135. 

(«) Veerayya v. Chellamma (1939) Mad. 234, 

(/) Bangappayva v. Sftua (1934) 57 Mad. 280, 
145 I.C, 961, (’33) A.M. 690. 


s>. 

580,560A 



616 


HINDU LAW. 


S. 561 561. Unchastity of widow. — il) Tte rigiit of a widow 

to imimtetiiinoft is conditional iipon her leading a life ot chastit}*. 
If she hecomes uiicliaste the burden at proving wMch is on the 
opposite party {g) the right is forfeited {h), even if it has 
been secured by a decree (i) or by aHxeement (j). But 
if she returns to a moral life, .she is entitled to " bare or 
what is also called starving ''' maintenance, that is, to food 
and raiment just sufficient to .supjport her life [k) [ss. 96 and 
556], 


(2) A charge of unchastity as disentitling a widow to 
maintenance must be specifically raisfid in the pleadings (Z). 

Froiisi'jn for m'linttn'inci undtr nn agredmnl.^lt often bappeni that a dispute 
ariso? baween the widow and her hasband’s relations as to the am-ouni of maint'enanee, 
and the amount is fixed amitabiy by an agreement between the parties. In such a 
case, if the husband's relations fail to pay the amount fixed by the agreement, and 
she Eue.s them for maintenance under the agreemenr, she is not entitled to maintenance 
of any sort if subservient unehattity i.= proved {»n). Bui if the unchastity dees not con- 
tinue up to the date of the suit, and she has refornie*] her ways before the suit and reverted 
to a chaste life, she is entitled to bare maintenance m). These case.? must be distinguished 
from the case where the widow claims her husband's property as being his sell-acquired 
property, and the di-spute is settled by an agreement between the parties whereby her 
husband's relations agree to fiay her a fixed sum of money monthly or anniiaily in 
consideration of her releasing her claim to the property. In such a case, if the relations 
fail to pay the agreed amount, and the widow sues them for arrears due to her under 
the agreement, she Is entitled to a decree for the full amount notwithstanding her subse- 
quent unchiastity (o) 


Provuion for mainUnanK under a Kill . — Where maintenance is given by a will, 
it is not forfeited by unehastity unless it is expressly provided that it should be so 
forfeited ip). 


ProrUion for muinlt nance under a decree . — A decree obtained by a Hindu widow 
declaring her right to maintenance is liable to be set aside or suspended in its operation 
on proof of subsequent unchastity given by her husband's relatives either in a suit brought 
by them expressly for the purpose of setting aside the decree, or in answer to the widow's 


^g) L<^k>,f^my:}iar^(l AnandiiVJ'ii^) fj2. l.X. 2o(i, , 
';y All. ('>'<' 1 , 37 Bom. L. R. b49, 157 I,C. i 
81D, ('35; A.BC. IbO. 

(h) /"irt/bee Hxngh v. Tlaj Kooer (1073) 12 Ben;:- ' 
L.K. 23fe. 247 I.A. Sup. Vol. 202; Mom- 
ram V. -ZToZitoni {1&80> 5 Cal, 776, 7&2, 1 
6 I A, llA ; Valu V. Cangu (IS&'l; 7 Bcun. 1 
b4 ; liomnnalh v. 17 Cal- 

674 ; Vvfhnn v, Monjamma (1885) 9 Bom. . 
108. 

(»; li.S'H'j} 0 Born. 106, tupra'. Tfaulta Kuari v, . 
Meghu (1603) 15 All. 382, /V'znHto/s'an'rfi 
V. Kundan (1902) 20 Bom. 707. 

(j) -Vaiiamma V. riraJ'^iarfra (1804) 17 Mad. 392. | 
(/.') ZZf/rtamnuiv. rim;znnait?iat(1077)l Bora. 559 ; ' 
H'ithyalhfiraa v, Rexanarharya (1916) 39 I 
Mail. 658, 29 I.C. 397, ('16) A.M. 464 ; 
Rhikubai v. IJariba (192.5) 49 Bom. 459, 
94 I.C, 665. ('25) A li 153 ; Rom Kumar ' 


iJult' V liltaguaufo (lySl) 56 All. 392, 
148 I.C. 625, '('34) A. A. 7S where Rs. 15 
per month ^^ere allowed, the estate 
jiaying a land revenue of Rs. 3,500. 

(/) Haji Sabof} Sidick v. Ayeffiabai (1903) 27 
Bom. 455, 30 I.A. 127. 

(m) Kagauima V. Tfrafr/irfftra ( 1894) 17 5tad. 392 ; 

V. Zuif!?)7-m (1931) 33 Bom. B.R. 
510. 135 I.C. 477, f’31) A.B. 286. See 
al'^o V. Bai Sanih (1931) S3 

Bom. LR. 490, 132 I.C. 444, {'31} A.B. 
297. 

(n) (1916) 39 5la.J. 658, 29 I.C. 397, (*16) A. 

51. 464, svpra , (1925> 49 Bom. 459, 94 
I.C. 665, ( 25) A. B. 153, supra, 

(o) Bbup^hingh v. Lachrnen (1904) 26 All. 321, 

325. 

(p) Parami v. Mahaderi (1910) 34 Bom 278 

5 I.C. 900. 



I 

MAINTENANCE OF WIDOW. 


617 


auit to enforce her right ( 9 ). If the decree ia suspended in its operation, and she returns 
to a life of chastity, the Court may award her bare maintenance (r). 

562. Eight of widow to reside in family house, — Hindu 
widow is, in the absence of any special circumstances, entitled 
to reside in the family dwelling house in which she lived with 
her husband [see sec. 573 below]. 


Ss. 

561.563 


A Hindu "vho died in 1888 provided by hia will that his elder wife should “ have the 
right of residence for the term of her natural life in the three-storied portion of ” a specified 
house. Her son resided with her in that portion of the house continuously from his 
father’s death. Upon a partition in 1898 that portion of the house waa allotted to the 
son subject to his mother’s right of residence. In 1899 the right, title and interest of the 
son was sold in execution, but the purchaser did not attempt to take possession for over 
twelve years. The son claimed that the right of the purchaser was barred by adverse 
possession. It was held by the Judicial Committee that upon the true construction of 
the will the widow had an exclusive right of residence, not merely a Hindu widow’s right 
of residence and that the sou’s possession was merely by her licence, and not adverse to 
the purchaser (s). 


563. Widow remarrying. — A widow by remarriage forfeits 
her right of maintenance out of the estate of her first husband 
[the Hindu Widows’ Remarriage Act, 1856, sec. 2]. The High 
Court of Allahabad has held that a widow who is allowed 
to remarry according to the custom of her caste does not by 
remarriage forfeit her right to maintenance out of the estate of 
her first husband (t}, and this view has been followed by the 
Chief Court of Oudh (u). The other High Courts have held 
that she does {v). The Allahabad High Court has again 
considered the matter in a Full Bench and has held that she 
does not, imless it is proved that the custom also involves 
such forfeiture on such a contingency (iv). 

The whole point i.s whether the provisions of the Hindu Widows’ Remarriage Act, 
1856, apply to the case of a remarriage where such remarriage is allowed by the custom 
of the caste. If they do, a widow by remarriage forfeits all interest in her husband’s 
property whether it be ( 1 ) by inheritance to her husband, or ( 2 ) by way of maintenance 
out of his property. If they do not, she does not forfeit either of those rights. The 
Allahabad High Court holds the latter view. The other High Courts hold the former 
view, and they have accordingly decided that a widow on remarriage forfeits her interest 
in the estate inherited by her from her first husband, even though the remarriage is 


(q) Vishnu V. Manjmma (1885) 0 Bom. 108; 

Daulta Kuari v. Meglm (1893) 15 All. 332. 
supra. 

(r) Uonamma v. Timannabhat (1877) 1 Bom. 

559, as explainod in lihikhit Bai v. Hanba 
(1925) 49 Bom. 450, supra. 

(s) Annada Prashad v. Ambiza Prashad (1925) 

53 I.A. 201, 53 Cal. 048, 97 I C. 761, ('26) 
A.PC. 96. 

(0 Gajadhar v. Kaunsxlla (1909) 31 All. 161; 
Mulla V. PaHab (1910) 32 All. 489. 6 I.C. 
110 : Mangal v. Bharto (1927) 49 All. 203, 
100 T.C. 734, ('27) A.A. 523. 


(u) Rum Lai v. Musatnmal Jivala (1028) 3 Luck. 
610, 109 I.C. 791, [’28) A. 0. 338 ; Gajadhar 
V. Musamrivit Sukhdei (1930) 5 Luck. 
689, 121 I.C 899, (*31) A.O. 107. 

(r) FtfAtt V. Gorinda (1808) 22 Bom. 321 [F.B ] ; 
Rasul V, Ram Surun (1805) 22 Cal. 589; 
Murugayi v. Viramalali (1877) 1 Mad. 
220; Suraj v. Attar (1922) 1 Pat. 706. 
67 I.C. 550, ('22) A.P. 378 , Santala v. 
Badaswari U923) 50 Cal. 727, 75 I.C. 11, 
(■24) A.C. 98 

(w) Bola Umar v. Kauailla (1933) 55 Alt. 21, 
140 I. C. C31, ('32) A.A. 017. 



618 


HINDU LAW. 


Ss. 

563,564 


allowed by the custom of the caste. No case has arise^i in those Courts as to the right 
of such a widow to maintenance out of the property of her first husband ; but it is clear 
that if such a case did arise, the right would be negatived. See notes to sec. 43, under 
the head “ Widow.” 


564. Widowed da\ighter-m-la.w. — (I) XiTiete there is uo 
property left by the husband, or where the property in which 
he was a coparcener at the time of his death is not sufficient 
for the maintenance of the widow, the question arises whether 
she has a legal claim for maintenance either against her own 
relations or against her husband’s relations. It has been 
held that she has no such claim either against her father or 
against his estate in the hands of his heirs [s. 546]. Nor has she 
any claim to maintenance against her husband’s relations {x). 

Even her father-in-law is not under a legal obligation to 
maintain her {y). But if he has got separate property of 
his own, he is under a 7noral obligation to maintain her out of 
such property. On the death, however, of the father-in-law, 
liis son, widow, or otbor boii isdroriting bis property, oomes 
under a legal obligation to carry out this moral obligation, 
and to maintam her out of such property. In other words, 
on the death of the father-in-law, the moral obligation on 
him to maintain his daughter-in-law ripens into a legal 
obligation on his heirs inheriting his estate in accordance 
with the principle stated in section 544 above (z). But this is 
subject, according to the Bombay High Court, to the condition 
that her husband was living at the time of his death in union 
with his father {a). 


In a case in which the father-in-law had disposed of his 
property by will, it was held by the High Court of Bombay, 
that the daughter-in-law was not entitled to mamtenance out 
of tbe property in the bands of tbe de\dsee {h) . Tbis decision bas 
been followed by the Madras High Court (c) but recently the 
Calcutta High Court has held the other way {d). 


(x) Gangahai v. iSiiaram (1876) 1 All. 170 ; Saii- 

iribai v. Lax7nibai (1878) 2 Bom. 573 [hus- 
band’s paternal unde] ; Apaji Gangabai 
(1878) 2 Bom. 632 [hu.sband's brother] • 
Bai Daya y. I^atha (1885) 0 Bom. 279 
(step-son] 

(y) Eala v. Emhibai (1883) 7 Boni. 127; 

yteenakshi v. liama Aiyar (1914) 37 Mad ! 
396, 18 I.C. 34, (’14) A.M. 587. 

(z) Jaiiki V. yandram (1889) 11 All. 194 [F.B.] ; 

Siddeitury v. Janardan (1902) 29 Cal! 
.^57 ; Kamxm v Chandra (1890) 17 Cal. 
373 ; Yamunalai v. Manubai (1809) 23* 
Bom. 608, Adhxbax v. Cursandae (1887) 


11 Bom. 199, 207 ; Ammakannu v. Apfu 
(l888) 11 Mad. 91 ; Jai Nand v. Aftwam- 
jnat Paran (1929) 4 Luck. 401, 118 I.C. 
419, (’29) A.O. 251 [F.B.l ; Eangammal v. 
Echhammal (1899) 22 Mad. 305. 

(а) Yart^anabai v. iXanubai (1899) 23 Bom. 608. 

(б) Bai Parxali v. Taru'adi (1901) 25 Bom. 263. 
(c) Sankaramurthy v. Subbamma (1939) Mad. 

242. 

(rf) Phool Coomari Daii v. Debondra Uolh Stal 
(1042) 1 Cal. 202, 202 I.C. SO, (’42) A.C. 
474. 



AMOUNT OF MAINTENANCE. 


619 


{2) The daughter-in-law does not lose her right of main- 
tenance out of the estate of her father-in-law by declming to 
reside in her father-in-law’s house (e). 


lllxistTaiion, 

A dies leaving a widow B, bub without leaving anj" property. B baa no legal claim 
for maintenance against her fathei:^*in-law. Bub if the father-in-kw dies leaving separate 
property, B is entitled to maintenance out of such property from his heirs who maybe 
J3's brother-in-law, or her mother-in-law or sister in-law. According to the Boinhay 
decisionSriJ is not entitled to maintenance out of the estate of her father-in-law unless 
her husband (A) was hving in umoii w'lth his father at the time of his death (f). 

665. Loss of caste. — Exconuumrication from caste dees . 
not deprive a Hindu vdfe of her right of maintenance [g). 


III.— AMOUNT OF MAINTENANCE. 

566. Amount of maintenance payable to a widow. — (i) The 
maintenance to he awarded to a widow should be such an 
amount as will enable her to live consistently with her position 
as a widow, with the same degree of comfort and reasonable 
luxury as she had in her husband’s house {h), unless there are 
circumstances which affect, one way or the other, her mode 
of living there. In other words, in determining the amount 
of maintenance the Court should have regard to the follovvuig 
circumstances (z) ; — 

(1) the value of the estate, taking the debts for which it 
is liable also into consideration (j) ; 

(2) the position and status of the deceased husband 
and of the widow ; 

(3) the reasonable wants of the widow including not 
only the ordinary expenses of living, but what she 
might reasonably exjieiid for religious and other 
duties incident to her station in life (k). 

(4) The past relations between her and her husband (1). 


(e) StddessKry v. Janurdan (1902) 20 Ca!. 5.^7. 
(/) Y amunabai X. Manubai 2Z J\om 008. 

ig) Queen v. Marimuitu (1882) 4 Mad 243. Sec 
Act. 21 ot 1850. 

(h) Rajatiikanta Pal v. Saia7iieHnd(iree Dasee 
(1934) 01 Cal. 221, 01 I.A. 29, 147 I.C. 
438, ('34) A.PC. 20. 

(t) Ekradeshwari v. no7n(’xhwar (1929) 56 I.A. 
182, 8 Pat. 840, 110 I.C. 400, (’20) A.PO. 
128. 

(j) Shridhar Bhagwanji Teli v. Met. Silabai 


(10381 Naii. 280. ('381 A. N. 108. 

(/•) Kiesoree v. Jogaidro Nauth{lS7S) 6 I.A. 

65 ; liausm v. Hup (1890) 12 All. 668; 
Veil Persad X , G’umFrtMli(1895) 22 Cal. 410; 
DaU'l Ktmtvar v. .dtH()tfra(l903) 25 All. 200; 
»SM«darjt V. i>a/it6ai (1005) 20 Bom. 310; 
Lala Maheshwari Prasad v. Sahdei 

A'MMu'ar (1038) Lm k. 13, 106 I. C. 227, 
('37) A, O. 10. 

(Z) PuruthothumduH llarjivandas v. Bai Buk- 
mani (1038) Bom. 1, 30 Bom. L. H. 46S, 
170 I.C. 897, ('37) A. B. 368. 


Si. 

564-566 



620 


HISLtU LAW. 


S. 566 


(2) In calculating the amount of maintenance, the 
widow’s stridhana must be taken into account unless it is of an 
unproductive character, such as clothes and jewels [m). But 
if the ornaments are of great value and are likely to be con- 
verted into money, that fact may be considered (n). But a 
voluntary payment by a brother to which she has no claim 
and which may be stopped at any moment ought not to be 
taken into account (o), nor her earnings by her own personal 
exertions (p). There is a conflict of opinion whether a widow 
is entitled to maintenance out of the property of the ioiut 
family to which her husband belonged, when the income 
from her stridhana is sufficient for her maintenance [see notes 
to s. 559], 

(3) The widow of a deceased coparcener is not entitled to 
maintenance in excess of the annual mcome of the share to 
which her husband would have been entitled on partition, if 
hving (g). "Where the estate is heavily indebted even one-fifth 
or one-sixth of the husband's income may be an adecpiate 
maintenance (r). 


(4) A widow, who has once received a sufficient allotment 
for her maintenance, but has dissipated it, is not entitled to 
further maintenance (s). 

Wants and exigencies. — By the coinmon law the right to maintenance la one 
accruing from time to time according to the wants and exigencies of the widow ” (0* 

Vahie of the estate, — “ The amount of the property/doubtless, is an element in deter- 
mining the sufficiency of majutenance, but it cannot be regarded as the criterion ” (w). 

Conduct of widow. — The conduct of the claimant to maintenance may also be taken 
into consideration (r). 

Funeral expenses of the widoiv. — The funeral expenses of a widow are payable out of 
the estate of her husband. Her stridhana cannot be charged with such expenses (tc). 


fm) Sh\b J)ay€€ v. DouTi^a Penhad (1672) 4 
X.W.i'. 63 ; SatUnCai v. Laxmilrtu (1673) 
2 Bom. 573, 584; Gvlnbai Zalhmidas 
(1890) 14 Bora. 490. 

<n) Guruskiddappa v. ParKata^cirii (1937) Bom. 
113. 38 Bom. L. li. 1293, 107 I C. 973. 
('37) A. B. 135. 

(o) Eahima Sarat^Trathi Kuer v. Bahiiria jS'Acora- 

lan Kiur (1933) 12 Pat, 869, 149 I C, 
738, ('34) A. I^ 99. 

(p) Jailtam v. Mil. Shiv Z/eii (1938) Lah, 352, 

(*38) A. L. 344 ; Bai Jaya v. Gnnpaimm 
Kalidat (1941) Bom. 483, 196 I.C. 607 
(‘41; A.B. 305, 43 Bora. L. R, 618. 

(?) Madhairai \. fJnngabci (1878) 2 Bom. 639 ; 
Adhiban V. C^rtandaz (1867) 11 Bom. 199, 


209; Jayanli v. AlGineiu (1904) 27 3Iad 
45. 48. 

(r) Sriuidli Sah\ir\ Thaktiraxn v. 3/rf. V .4 . ,L?ai i 
(1933) 12 Pat. 359, 145 I.C. 1, (’33) A.P 
30G. 

(#) i$aii(ri6ai v. Laxinnbai (1878) 2 Bora. 573, 
583. 

(() Saravunrao v. Ratmlai (1879) 3 Bom. 41.'’-', 
0 l.A. 114, 11 b : v. SubQ}i 

(1012) 30 Bom, 383. 14 I.C. 821. 

(»') Tayojt V. Tagore (1872) 9 Beug. L.R. 377, 
413 l.A. Sup. Vol 47, 82. 

(e) Tagore \ ( 1872) 9 Beiig. L R. 877, 

413 l.A. Sup. Vol. 47, 82 ; 5ora?npa/h v. 
Suravipalli (1908) 31 l^d. 338, 341. 

(«■) Ralanchand v. Jaierihand (1898) 22 Bom. 
818. 



AMOUNT OF maintenance. 


621 


MaitUenance of wife forsaken by her husband. — Where a husband forsakes his wife 
without any justifying cause, she is entitled to one-third of the husband’s property for 
her maintenance. It has been so held by the High Court of Bombay on the strength 
of a text of Yajnavalkya {x). 


567. Amount of maintenance for other females. — The 
principles upon which maintenance is allowed to a widow are 
to be applied muiatis mutamlis in determining the amount of 
maintenance to be awarded to other females ; that is to say, 
the Court must have regard to the value of the property, and it 
must take into consideration the independent means of support, 
if any, of the person claiming the maintenance (y). 


568. Amount may be increased or decreased. — The 
amount of maintenance, whether it is fixed by a decree or 
by agreement, is liable to be increased or diminished, whenever 
there is such a change of circumstances as would justify a change 
in the rate (z) . Thus the rate of maintenance may be enhanced, 
if the income of the estate has materially increased or there 
has been a material increase in the cost of living (a) provided 
this was not anticipated and allowed for at the time of the 
decree (b). Similarly, the rate may be reduced, if the income 
of the estate has diminished (c), unless the diminution has been 
caused by the default or negligence of the person liable for 
maintenance (d). But the rate of maintenance need not vary 
with every fluctuation in the income (e). An agreement by a 
widow to receive a fixed maintenance per annum and not to 
claim any increase in future even m case of change of circum- 
stances is binding, upon her (/). • 


Procedure . — A separate suit must be brought to vary the rate of maintenance fixed by 
a decree, unless the decree contains a clause enabling the parties to apply for a modifica- 
tion of its terms, in which case an application may be made to alter the rate in execution 
proceedings [g). 

It may be asked why it is that the rate of maintenance, though fixed by agreement, 
may be varied by the Court in a suit brought for that purpose. The answer is that the 


(x) Ramabaiv. ITrnuiai (1872) 0 Bora. H. C. 283, 
Mayithha, chap. 20, para 1, 

(p) Mahd^h V. Dirgpal (1899) 21 All. 232, 234; 
Tagore, v. Tagore (1872) 9 Beng. L.R. 377, 
413 I.A. Sup. Vol. 47, 82. 

(x) Sidtxngajfa v. Sidaia (1878) 2 Bora. Q24, 930 ; 
Rajender v. Putto (1879) 5 Cal. L. It. 18 ; 
Thakur Seo Slangal Singh v. Thakurmn 
Bodhi Kuar (1936) 11 Luck. 007, 159 I.C. 
350, (’30) A.O. 60. 

(d) Bangaru v. Vijayantachi (1899) 22 Mad. 175. 
(b) Veerayya v. Shellamma (1939) Mad. 234. 

V, Bai Nag, 437, 185 

I.C. 580, (’39) A. N. 249, 


(rf) Gopikabai v. Daiialraya (1900) 24 Bom. S80 ; 
Vijaya v, Sripaihi (1885) 8 Mad. 94 ; Rula 
Bax V. Ganda Bai (1878) 1 AU. 594. 

(e) Lala ilakesivari Prahod v. Mst, Sakdei 
Kanioar (1938) 13 Luck. 13, 165 I.C. 227, 
(’37) A. O. 16. 

(/) Mohexshwara v. Durgamha (1924) 47 Mad. 
303, 78 I.C. 831, (’24) A. M. 687 , Puru- 
shottamdas Harjuandas v. Bai Rukmani 
(1938) Bom. 1, 30 Bom. L. R. 458, 170 
I.C. 897, (’37) A. B. 358. 

(g) JHaharana Shri RanniaUanggi v, Eundan 
/fuM«ir(1902|26 Bom. 707 (1878) 1 AU. 
594 . 


Ss. 

566.568 



622 


HINDU LAW. 


Ss. 

568, 569 


right to maintenanoe does not rest on contract, but on the provisions of the Hindu iarv 
which expressly govern the rights and duties of the different members of a Hindu, 
family (ft). 


IV.— TRANSFER OF FAMILY PROPERTY AND ITS EFFECT 
ON THE RIGHT OF MAINTENANCE. 


569. Maintenance not a charge. — The claim, even of a 
widow, for maintenance is not a charge upon the estate of 
her deceased husband, whether joint or separate [s. 559], until 
it is j&xed and charged upon the estate. This may be done by a 
decree of a Court, or by an agreement between the widow and 
the holder of the estate, or by the will by which the property 
was bequeathed. Therefore, the widow’s right is liable to be 
defeated by a transfer of the husband’s property to a hona fide 
purchaser for value without notice of the widow’s claim for 
mamtenance. It is also liable to be defeated by a transfer to a 
purchaser for value even with notice of the claim, unless the 
transfer was made with the intention of defeating the widow’s 
right and the purchaser had notice of such intention. In fact, 
a ividow’s right to receive mamtenance is one of an indefinite 
character which, imless made a charge upon the property, 
is enforceable only like any other liability in respect of which no 
charge exists {i). But where maintenance has been made a 
charge upon the property, and the property is subsequently sold, 
the purchaser must hold it subject to the charge (j). No 
question, however, of bona fides can arise where a transfer is 
made for payment of debts as stated ii* sec. 570. 


Illustration, 


A and hia brother B are members of a joint Mitakshara family. A dies leaving, 
a widow C. After A’s death, B sells the joint family property to D. It is proved that 
B sold the property with the intention of defeating C”s right of maintenance. It is also 
proved that D had notice of C’s claim for maintenance, but that he had no notice of the 
fact that B Intended to defeat 6'’8 right, and that he bought in the rational and honest 
belief that the sale was one which could be efiected without any furtherance of wrong. 
The sale is valid against C, and D acquires a title free from C's claim. But C's claim will 
still subsist in full force as against B, the recipient of the purchase-money : Lakshman 
V. Saiyabhamabai (1877) 2 Bom. 494. at p. 524. 


(A) Sidhngapa v. bidaia (1878) 2 lloin. (>24 ; 
iaio Maheihwan Prasad v. Mst. Sahdei 
Kunwar (1938) 13 Luck. 13, 105 I.C. 227 
(’37) A. 0.16. 

(») Lakshman v. Saiyabhamabai (1877) 2 Bom. 
494 ; Bharatpur State v. Gopal (1902) 24 
AU. 160, 163 ; i?am Kvmvar v. Bam Jlai 
(1900) 22 All. 326; Bamanadan v. Ban- 
gammalilSSQ) 12 Mad. 260, 272, Jayowii v. 
Alameiu (1904) 27 Mad, 45, 49 ; Soora Koer 


V. .\ath liuksh (1885) 11 Cnl. 102 [mere 
notice ininmtcrial) ; Prosonno v. Barbosa 
(1866) 6 W. ]l. 253 [charge created ty will] ; 
Sorolah v. Bhoobvn (1888) 15 Cal. 292, 307 . 
Sri Behiirilalji v. Bai Bajbai (1899) 23. 
Bom. 342 ; Bhagat Bam v. Mst. Sahib Devi 
(1922) 3 Lab. 55, 67 I.C. 848, (’22) A. 
L. 273 ftransler not bona fide]. 

(}) Kuloda Prosad v. i/a^gsAar (1900) 27 Cal. 104.; 
Prosonno v. Barbosa ^806) 6 W.R. 253. 



RIGHT OF MAINTENANCj:. 


623 


TAe Transjer of Property Act, 1882, sec. 39. — A widow’s right of maintenance not 
being a charge, it is hut etiuitable that it should not be enforced against a transferee for 
valve unless the transfer was made in fraud of the right of maintenance. A transferee 
for value may be a purchaser, or he may be a mortgagee. The provisions of sec. 39 of the 
Transfer of Property Act, 1882, are to the same effect (i). That section is as follows : — 

“ Where a third person has a right to receive maintenance or a provision for advance- 
ment or marriage from the profits of immoveable property, and such property is trans- 
ferred, the right may be enforced against the transferee if he has notice thereof or if the 
transfer is gratuitous ; but not against a transferee for consideration and without notice 
of the right, nor against such property in his hands.” 

Decree ; death of judgment debtor. — A decree for maintenance obtained against a 
member of an undivided family can be executed, after his death, against joint property 
in the hands of other members, if the decree created a charge against the joint family 
property (!) ; even when there is no charge, it may be executed against the son of the 
judgment debtor (m) to the extent of the ancestral irroperty in his hands whether such 
maintenance was due at the time of the death of the deceased judgment debtor or became 
■due since. 

Where in execution of a decree creating a charge, the decree-holder herself purchases 
the charged property subject to her claim to future maintenance, it has been held that the 
judgment debtor’s personal liability for future claims is not extinguished (a). 

Possession of property by widow for her maintenance. — It has been held that where 
a widow is in possession of specific property for the purpose of her maintenance, a pur- 
chaser buying with notice of her claim is not entitled to possession of the property without 
first securing proper maintenance for her (o). It is the settled practice of the High Court 
•of Bombay not to allow even an heir to recover family property from a widow in possession 
without first securing a proper maintenance for her (p). In such a case the property may 
be sold subject to her rights (j). 

Charge may be created by a will. — A may bequeath his property to B subject to a 
•charge for the maintenance of his widow out of the property (r). 

Alienation made in husband’s lifetime. — A Hindu widow is debarred from impeach- 
ing alienations of joint family property made in her husband’s lifetime. The reason is 
that when her right of maintenance comes into existence (that is to say on her husband’s 
death) she takes that right in the property as it stands at the time of her husband’s 
•death (s). 

570. Transfer for , -.payment of debts. — Debts contracted 
by a Hindu take precedence over the right of maintenance 
■of his wife, or infant child (t), or his widow after his death (m). 
The same is true of debts contracted by the manager of the joint 
family of which the husband was a member, provided the 

(k) See Sri Beharilaljt v. liai Rajb&i (189&> 23 
Bom. 3-12 ; Rum Kwiwar v. Ram Dax 
(1900) 22 All. 326, Somastindarmn v. 

XJnnanuLlai (1920) 43 Macl, 800, 802, 59 
I.C. 398, (’20) A.M. 722. 

{1) Suhbanna v. Subhanna (1907) 30 Mad. 324 ; 

Minakshi v. Chinnappa (1901) 24 Mad. 

689. 

(m) JUf. Muniiibihi v. Radhay Shiam (1945) 

L'lrk. 041; Muttia\. Viramwwi (1887) 10 
Mad. 283 ; Bhagirathi v. Anantha (1894) 17 
Mad. 268. 

(rj) Sanyasirao v. Suryanarayanamhia (1937) 

Mad. 324, 163 I.C. 647, (’30) A.M. 964. 
v(o) Raf'hawa v. (1894) 18 Bom. 679 ; 

Imam v. Balamma (1889) 12 Mad. 334. 
y{p) Yellawa v. Bhimangavda (1894) 18 Bom, 452. 


(q) Ram Kumar v. Amar Nath (1932) 54 All. 

472, 138 I.C. 363, (*32) A.A.361. 

(r) Pwwnwo V. /Jarbdwa (1866) 6 W.B. 253. See 

also (1899) 23 Bom. S42, eupra. 
is) Ramzan v. Ram Daiya (1918) 40 All. 96, 42 
I.C. 944, (’18) A.A. 408. 

(f) Sunder Singh v. Ram Nath (1926) 7 Lah, 12, 
93 I.C, 1013, f'26) A.L. 167 ; Jawahxr 
Singh V. Parduman Singh (1933) 14 Lah. 
399, 141 I.C. 424, (’33) A.L. 116. 

(if) Adhiranee v. Shona Malee (1876) 1 Col. 365 ; 
Jayanti v. Alamelu (1904) 27 Mad. 45; 
Gur Dayal v. Eaunsila (1883) 5 All. 367; 
Nalchiarawmal v. Gopalkrishna (1878) 
2 Mad. 126 ; Jamiat Rai v. Mt. Malan 
(1932) 13 Lah. 41, 133 I.C. 62, (’.31) 
A. L. 718. 


S«. 

569, 570 



624 


HIKDU LAW. 


S. 570 deljts were incurred for the benefit of the family ir). Similarly 
debts incurred by a joint family trading business take pre- 
cedence over the widow's right to rnaintenancr' and residence (v:}. 
Therefore, if propertv belonging to the liiisbajid or to the 
joint family is sold in liquidation of such debts, the sale is 
binding on the widow, and she has no right of mamreriance 
against the purchaser or against the property sold to him. even 
if the purchaser had notice of her claim for maiuteiiaiice {xh 
But where maintenance has been made a charge upon the 
property, it takes pirecedence over the right of a subsequent 
purchaser of the same property in execution of a money-decree, 
though the decree was in respect of debts binding on the 
famil}’ iy). If the decree of a creditor against the members 
of a joint family based on a family debt is to be bindmg on a 
widow in the family entitled to maintenance, it is not necessary 
that she shotdd be made a party to the suit so long as the family 
is joint. But if a partition is effected before the suit or during 
che pendency of the suit iir which a separate share is allotted 
to her in lieu of her maintenauco she ought to be made a party 
to such a suit (:). 


lUustratiyns. 

(a) A and his brotlier B are mc-mbers of a joint Mitakehara iaiiulT. A dies leaving 
a widow. After A's death B .seils the propertv in order to satisfv debts binding on the 
lamilv. B s widow has no claim for maintenance cither against the purchaser or against 
the property ; Lakshman v. S'ttm’/hamatai (ISTTj 2 Bom. 494. 

(b) A dies leaving a widow B. After A's death. C, a creditor of A, obtains a decree 
against B as A's legal representative, and sells the family liouse in exec ation of the decree, 
B has U'l claim for maintenance either against the ptireliaset or against the nioperty ■. 
Jayanii v. Alainelu (1904) 27 Mad. 4.5. 

(c) A and his sons B, C and B. are memix'rs of a joint family. .4 dies leaving 
a widow. After A's death, B, as tlie manager of the fainily, sells the family hnti5,e in order 
to pay debts binding on the family. A's widow has no claim for maintenance either 
against the purchaser or against the property; Rumnnihlun v. Ban-jamnn! 

12 Mad. 260. 


(d) A Bells certain property belonging t-o him for the payment of Lis debts. Xeitht-r 

A’s wile nor his children have any claim for maintenance against the ptircha.sc-i or the 
property : Gur Datjal v. Kmmsila (1SS3| 5 All. ,3t>7. 


(p) Lakshinan v, Saiyabharna^ ai (187") 2 B' n 
494 ; Iiun»anadan IturuyatnyHai ( 

Kad. 260; Tohurra Srt*so}^i 
1 Cal. 470. 

(te) Me, Champa v. Official Heceh^r. 

(1934) 15 Ls^. 9, 144 iXh 636. X L. 
901, 

(X) (1S77) 2 Dom. 4S4, ivtpra : 12 Mad. 

260. fttpra ; 3iutammat Tara v Sarvi 
(1929^ IfJ Lalj. 7 «j6, 145^ I,C, 7®7, 


( Ay^>v 117. 

fy> V. i ' 1 43 M&iJ- 

fiW, 59 I.C. 395. Hit-' di-Tia TC' Tfe can- 
Trap- in Lai v. Banwa a^^2;l 4 .All 

29^,, 26‘0, and v. j[38^3 . 

5 Ail. 3C~, are not supp-orted l-y any liii 
oi Hindu Jaw or by any decided case. 

fe) Mt, pTa^'haiaii v. SayiQn Lai 

(1934^3 Fat. :S5. 152 I.C. 691 f '34f A.F- 
538. 



RIGHT OF RESIDENCE. 


625 


571. Eight of maintenance against donees and devisees. — A 
Hindu cannot dispose of his entire property by gift or by will, 
so as to defeat the right of his widow to maintenance. If he 
does so, the donee or devisee must hold the property subject 
to the widow’s right of maintenance, and the widow may 
enforce her right against it (a). 

572. Transfer of property pending suit for maintenance. — If 
during the pendency of a suit instituted by a widow to establish 
a charge on specific immoveable propeity for her mainten- 
ance, the property is transferred by any other party to the 
suit, and a decree is subsequently passed creating a charge 
on the property for the widow’s maintenance, the transferee 
must hold the property subject to such charge, unless the 
transfer be effected lor the purpose of paying off a debt which 
has priority over the widow’s claim for maintenance (6). The 
same rule applies where the widow is a party to the suit and 
slie has by her written statement claimed a charge on the 
property (c). 

The rule laid down in this section is an application of the doctrine of iis pendens 
as enunciated in the Transfer of Property Act, 1882, s. 52. The rule does not apply 
where n widow claims maintenance without asking at the same time that it should be 
made a charge on the property (</). 


V.— TRANSFER OF FAMILY DWELLING-HOUSE AND ITS 
EFFECT ON THE RIGHT OF RESIDENCE. 


573. Widow of undivided coparcener. — ^Where an imdivided 
family consists of two or more males related as father and son or 
otherwise, and one of them dies leavmg a widow, she is entitled 
to reside m the family dwnUiug-house in which she lived with 
her husband (e). If the house is sold by the surviving 
coparcener or coparceners tcithout necessity, the sale does not 
affect her right, and the purchaser camiot evict her {f), at all 
events until another suitable residence is found for her (g). If 
the purchaser buys the house with full knowledge that the 
widow is residing and is bemg maintained in it, the purchaser is 
not entitled to oust her even though there may be other property 


(а) JJecJta v. MolhiJia (1001) 23 All, 80 ; Joj/tara 

V. Bamhan (18S4) 10 Cal. 038 ; Narbadaba% 
V. Mahadeo (1881) 5 Bom. OU , Javina v. 
Machul (1879) 2 All. 315. 

(б) VoRe Thiinmanna v. Knhhna (1906) 29 Mad. 

508 

(c) JoQcndra v. Fulkxtmari (1900) 27 Cal. 77. 

(d) Manika v. Ellappa (1890) 19 Mad. 271. 


(e) Bai DeiKore v. Sanniidhram (1889) 13 Bom. 
101 . 

(/) Venkatammal v. Aiidyappa (1883) 6 Mad. 
130 ; Gauri v. Chandramanx (1876) 1 All. 
262 , T'altniand v. Hulvwna (1881) 3 All. 
353 

(j7) Manaala v. Dmunath (1809) 4 Beng. L.E. 
O.G. 72. 


Ss. 

571-573 



e26 


HINDU LAW. 


Ss. belonging to the family out of which her mamtenance can 
be derived (ft). But if the sale in for & family necessity, she 
is liable to be evicted even though the purchaser had notice 
at the time of purchase that she was in occupation of the 
house (i). Similarly the right of residence cannot prevail 
against the husband’s debts (j). 


lUvetralioru. 

(&') A dies leavinj^ a widow and a son. The son sells the family dw'ellmg-house 
without family necessity. The purchaser i.s not entitled to evict the widow : 4 Beng. 
L.R. 0. C. 72 ; C .Mad. 130 ; 7 Bom. 282. 

(b) A and B, two Hindu brothers, are members of a joint family residing together 
in the family dwelling-house. A dies leaving a widow TV. After .d's death dispute 
arise between B's wife and W. B offers W a residence in another house on condition 
of W vacating the part of the family house in her occupation. If' refuses and B sues 
ir to recover from her poesc.ssion of the portion of the family house in her occupation 
B is not entitled to possession. If' is entitled to reside in the house : Bai Devkore v. 
Sanmukkram (1889) 13 Bom. 101. 

(o) A and his nephew B are members of a joint family residing together in the family 
dwelling-house. A dies leaving a widow, .^fter A's death B sells the family dwelling- 
house without family neeessitv. The purchaser is not entitled to evict .4's widow : 1 
All. 202. 

The widow of a deceased coparcener cannot impeach an alienation of the family 
dwelling-house made in her husband’s lifetime. Thus a daughter-in-law cannot imjwach 
an alienation of the dwelling-house made by her father-in-law in her husband's lifetime (fc). 

574. Unmarried daughters of deceased coparcener.— "'i^Tiere 
an undivided family consists of two or more males related as 
father and son or otherwise, and one of them dies leaving 
unmarried daughters, they are entitled to reside, until their 
marriage, in the family dwelling-house in vvhich they lived 
with their father, and a purchaser of the family house is 
not entitled to evict them unless the sale was for a family 
necessity {1). 


IllitMralions, 


(a) A dies leaving a son, a widow W, and two unmarried daughters D\ and D2. 
On A s death, the son enters into possession of the whole property including the family 
dwelling-house. The son then sells the house without family necessity. The purchaser 
is not entitled to oust the daughters. The daughters are entitled to reside in the house 
until their marriage. 


(h) Balmkhram v. Lallubbai (18e3) 7 Bom. 2811. 

(i) harmmndan v. Rangammal (188») 12 Mad. 

260. See also Johurra v. Sreegopal 0876) 
1 Cal. 470, 475 linsolveney of managerl * 
Ml. Champa v. Official Receiver, Karachi 
(1034) 15 lali, 9, 144 I.C. 636, (‘33) A. L 

Hfil • 


(j) Jamiat Rai v. Ml. A/alan {1932) 13 Lab. 41, 
1331 C. 62, (’31) A.L, 301. 

(t) Ramzan v. Ram Daiya (1918) 40 All. 96, 42 
I.C. 944, ('18) A.A. 408. 

(1) .Snriianarayana v. Balanibramania (1920) 
43 Mad. 635. 66 I.C. 024, ('20) A.M. lUO. 



RIGHT OF RESIDENCE. 


627 


(b) In the case jjut in ill. (a), the son die.a leaving his mother W and his two un- 
married sisters JDl and D2. After his death the dwelling-house is sold in execution ol 
a money-decree passed against 11' on a pcisonal debt of IT, and is purchased by P. P 
is not entitled to oust Dl and D2 : Suryanarayana v. Balasubramania (1920) 43 Mad. 
636, 56 I. C. 524. ('20) A.M. 106. 

575. Wife and unmarried daughters of sole owner. — 
(i) Where a family consists only of a husband and wife the 
wife cannot assert her right of residence in the family dwelluig- 
house either against the purchaser in execution of a decree 
passed against her husband in his lifetime or against his 
estate after his death {m), or even against a purchaser under 
a private sale from her husband without necessity {n), though 
the purchaser had notice at the time of sale that she was 
residing in the house (o). 

(2) The same rule applies to unmarried daughters. They 
too cannot resist the claim for possession of the purchaser 
at a court-auction or under a private sale {p). 


Illustrations. 


(a) N executes a mortgage of the family dwelling-house to M. M obtains a decree 
on the mortgage against N, N then dies leaving a widow. After death the house is 
sold in execution of the decree and purchased by P. P is entitled to the possession of the 
house free from the widow’s right of residence : MaiiUal v. Bai Tora (1893) 17 Bom. 398 ; 
Jayanti v. Alamelu (1904) 27 Mad. 45. In 17 Bom. 398, the learned judge observed that 
if the mortgage was not beiie6cial to and binding upon the wife or was in any way in 
fraud of her rights, her right of residence would not be affected by the sale. But these 
observations have been dissented from by Bhashyam Ayyangar, J., in 27 Mad. 45, 
at p. 51, and also by Shah, J,, in Gangabai v. Jankibai (1921) 45 Bom. 337, at p. 342, 
59 I. C. 683, (’21) A. B. 380, who agreed with the view taken by Bhashyam Ayyangar, J. 

(b) A sells the famil}' dwelling-house without any family necessity to P. P sues 
A and his wife for possession. A then dies leaving his widow. P is entitled to posses- 
sion free from the widow's right of residence. 


The reason of tlic distinction between the rights of tlie females mentioned in secs. 
573 and 574 on the one hand and those mentioned in sec, 575 on the other is that the 
right which a Hindu wife [s. 575] has of maintenance and residence during her husband's 
lifetime is a matter of personal obligation arising from the very existence of the relation 
and quite independent of the possession by the husband of any property, ancestral or 
self-acquired. The same principle applies as between daughters and their father : see 
sec. 642 above. It is different, however, in the case of the widows and daughters of 
deceased coparceners [secs. 573-574], whose right depends on the possession of joint 
property by the surviving coparceners : see sec. 543. 


(m) Manilal v. Ba% Tata 17 Bom, S9S . 

Jayanti v. Alamelu. {190-4) 27 Mad. 45. 

(n) Oan^afcat v. Janhibax (1921) 45 Bom. 337, 59 

I.C. 583, (’21) A.B 380. 


( 0 ) 17 Bom. 398. supra , 45 Bom. 337, 59 I. 

C. 583, (’21) A. B. 380, sujra. 

(p) See Suryanarayana v. Balasubramania 
(1920) 43 Mad 635, 56 I.C. 624, (’20) A.M. 
106 and 27 Mad. 46, supra. 


Ss. 

574, 575 



628 


HIXBL' LAW 


Ss. 

576479 


YI— BIGHT OF MAIHTENAHCE HOT AFFECTED BY WILL. 

576. KigM of maintenance not affected by will. — A Hiiiclii 
caimot so dispose of his property by will as to affect the right of 
maintenance to which a person is entitled under the Hindu law. 

S^’C' Ko. 1 of Schedule III of the Indiaii Succession Act. l‘9'2o. 

VII— TRANSFER AND ATTACHMENT OF RIGHT OF MAINTENANCE. 

577- Transfer of right of maintenance. — Hindu female 
cannot transfer her right to future maintenance in whatever 
manner arising, secured or detennined (f). 

Thbia s. 6, cl. (dd), of theTianUerof Property Act, 18S2. as amended by the Transfer 
of Property (AmcEdment) Act, 

The mainienance may be fi.xed by acreement or it may be fixed by a decree of Court. 
Before the amendment there was a coiilliet of opinion whether if the mauitenance was 
fixed bv a decree, it could Ije transferred by the widow, the High Court of Calcutta holding 
that it could 'rj, and the High Court of Madras that it could not p). The Calcutta 
view is no longer law. 

578. Attachment of right of maintenance. — A right to future 
maintenance camiot be attached m execution of a decree, 
though arrears of maintenance may be so attached (/). 


VIII.— SUIT FOE MAINTENANCE. 


579. Suit for maintenance. — (i) A widow, who is entitled 
to maintenance, may sue for all or any of the following reliefs : — 

(1) for a declaration of her right to maintenance ; 

(2) for arrears of maintenance (i/) ; 

(3) for a charge on a specific portion of her husband's 

estate for her maintenance and residence (c) 

(2) AMiere a member of an undivided family comprising 
several branches dies, and a suit is brought by his widow for 
maintenance, she is entitled to a decree against ail the members 
of the joint family, and not only against the branch to which 
her husband belonged and to which his share lapsed bv 
survivorship {v;). 


iq) Narhadabax v. Mahadeo (1881) 5 lioin. 99, 
103, 104. 

(r) Aiad Ali v. Haidar Ah (1911) 38 Cal. 13, 
f. I. C. 826. 

(«) lianee Annapumi v, Sicaminaiha (1011) 
34 Mad. 7, 9. 6 I. C. 439. 
it) Code of Civil Trocedure, 1908, Fee. 60, cl 
iu ) ; HariAat v. Baroda (1900) 27 Cal. 38 ; 


HoynwbuUi/ v. Koroona (1867) S \V. K 41. 
(u) Pirthee Singh v. liajkooer (1874) 12 Beng. L. 
K. 238 I. A. Sup. Vol. 203. 

(«) MahaUikskmamma v. Venkataratnamttta 
(1863) 6 Mad. 83. 

(tt?) Subbarayalu v. Kamalavallxtha yaraiunia 
(1912) 33 Mad. 147, 10 I. C. 347. 



SUIT TOR MAINTENANCE. 


629 


580. Limitation. — (J) .K snit for a rieclaration of a right 
to mamtenance must be brought within twelve years from 
the time when the right is denied (x). 

The refusal by a husband to maintain his wife on the 
groimd of unchastity does not prevent a fresh cause of action 
arising to her on his death, if it is found that there is no 
unchastity. A suit within 12 years from the husband’s 
death would be in time (y). 

(2) A suit for arrears of mamtenance must be brought 
within twelve years from the time when the arrears are 
payable (z). Therefore, past maintenance cannot be claimed 
for a period of more than twelve years. 

Arrears.- — In order to recover arrears of maintenance, it is necessary to prove that 
there was a wrongful withholding of maintenance for the period for which arrears are 
claimed («). It is not necessary to prove a demand for each year's maintenance aa it 
became payable. At the same time it must be observed that mere non-payment of 
maintenance docs not constitute cunclusive proof of wrongful withholding. But it 
constitutes prima facie proof of wrongful withholding, and if it is coupled with a denial of 
the plaintiff’s right to maintenance, it may constitute sufficient proof of wrongful 
withholding to entitle the plaintiff to arrears of maintenance (6). 

Declaration of right to maintenance. — A suit by a Hindu widow for a declaration 
of her right to maintenance is not barred, merely because it is brought twelve years after 
the date of her husband's death. The period of limitation runs from the time when 
her right to maintenance is denied. The reason is that the right to maintenance is one 
accruing from time to time according to the wants and exigencies of the person entitled 
to maintenance (c). 


581. Execution of decree. — A decree which directs the 
payment of future mamtenance from time to time can be 
enforced by execution (d), but a decree which merely declares 
a right of maintenance cannot be so enforced (e). 


A decree which runs ‘ the jjlaintiff’s uiaintenance is fixed at the rate of Rs. 30 per 
rnonfcli which the defendant wifi be liaiile to pay her ever^’ month ’ is executable. An 
application by the defendant to reduce the rate of maintenance on the ground of climiQU- 
tion of income cannot be entertained by the executing court (/), 


If a husband and wife re.«*uine co-habitation after a decree for maintenance the 
decree cannot be executed. If a fresh cause of action arises a fresh decree must be 
obtained (g). 


(1) L»mltafcion Act, 1008, Sch. I, art. 120. 

(j/) Mi. Shibhi \ . J odh Singh \\^^Z) 14 Lnh. 759, 
148 I. C. 479, r33) A L. 747. 

( 2 ) Limitation Act, 1008, Sch. I, art. 128. 

{a) Scs^iamina v. Subbarayadu (1895) 18 Mad. 
403. 

(0) Raja Yarlagaddla v. Raja Yarlagadda (1901) 
21 Mad. 147, 27 I.A. 151 ; Parttalibai v. 
Chatru (1912) 36 Bom. 131, 12 I. C. 708. 


(c) A'arayanrao v, Ratnabax (2879) 3 Bom. 415, 

6 I.A. lit ; Pancatibai v. Chatru, supra 

(d) Ashutosh V. Lukkitnoni (1892) 19 Cal. 189. 
fc) Venkanna v. Aitamma (1889) 12 Mad. 183. 
(J) Kallu Mai v. Barfo (1938) All. 535, 176 I. C. 

139, (*38) A.A. 362. 

Of) Vasantam Venkayi/ay. Vasantam Raghavatn' 
mur (1942) Mad. 24, 200 I.C. 704. 
('42) A.M. 1. 


Ss. 

580, 581 



620 


CHAPTER XXVI. 
CONVERSION FROM HINDUISM. 


[Prtliminary Note . — We have already considered the consequences of conversion 
from Hinduism in cases hearing on the Hindu law of partition (s. 325), dissolution 
of marriage (s. 441), adoption (s. 478), guardianship (ss. 625-526), and maintenance 
(a. 491). We have also dealt with the law to be applied to Native Christians, that is 
converts from Hinduism to Christianity [s. 7 (2)]. We propose to consider in the present 
Chapter the law applicable to Khojas and Cutchi Memons. Khojas and Cutchi Memons 
are converts from Hinduism to Mahomedanism.] 


S.582 


582. Khojas and Cutchi Memons [The whole of thissection is 
subject to tlie provisions ofthe Shariat Act, 1937(7i).] — {1) In the 
absence of proof of special usage to the contrary, Khojas and 
Cutchi Memons in the Bombay Presidency are governed, in 
matters of inheritance and succession, by the Hindu law ; in 
other matters they are governed by the Mahomedan law {i). 
The only special usage opposed to the Hindu law of succession 
hitherto recognized is the usage of the Khojas according to 
which the mother is entitled to management of property and 
letters of administration in preference to the childless widow 
or sister of the deceased (jf). 


(2) It was at one time held by the High Court of Bombay 
that the joint Hindu family system prevailed among Kho- 
jas and Cutchi Memons, but the decisions did not make it 
quite clear how far it prevailed and what incidents of joint 
property held by a Hindu family applied to joint property 
held by a Khoja or Cutchi Memon family. On the one 
hand it was held that a Khoja son was not entitled to a 
partition of ancestral property against his father in his 
lifetime (fc). On the other hand it was held that the right 
of survivorship ( 1 ), the incapacity to dispose of ancestral 
property by (m), and the powers of a father as manager 
of an ancestral business to borrow money for the business so 
as to bind the interest of his sons in the ancestral property (n). 


(h) SeeMulla’a Mahoraetlan Law, 12th p. 3. 

(i) .KAoja's and Jfetnon’J case (1847) Perry O.C/. 

119 ; iSAiuji Hasam v. Datu (1875) 12 
Bom. H. C. 281 [Khojasl ; ,4«Aa6ot v, 
Ba)i Tyet> (1886) 9 Bom. 115 [Outchee 
Memooa] ; Mahomed Sidick v, Baji Ahmed 
(1886) 10 Bom. 1 (Cutchee Memoos] ; 
Adv.-Oen. v. KarTWli (1905) 29 Bom. 133, 
148 ; Jan Mahomed v. Datu (1914) 88 
Bom. 449, 22 I.C. 196, ('14) A.B. 69; 
Abdurahim v. Halimabai {1916) 43 1.A. 35, 
18 Bom. L. R. 635, 32 I. C. 418, ('16) A. 
PC. 86; Mangaldas v. A6dul vlSli) 16 


Bom. L.R. 224, 23 I.C. 505, (’14) A.B, 17: 
Advocate-General v. Jxmbabai (1917) 41 
Bom. 181, 31 I.C. 108, (’15) A.B. 161. 

(i) Bahimbhai, tn the goods o/(1876) 12 Bom.H. 
C. 294 [KhoJOB}. 

(A) Akmedbhoy v. Caesambhoy (1889) 13 Bom. 
534 [Khojas]. 

(D (1883) 9 Bom. 115, twpra [Cutchee Memons], 
tm) Mahomed Sidick v. Haji Ahmed (1886) 10 
Bom. 1 [Cutchee Metaons]. 

(n) Haroon Mahomed, in the matter o/(180O) 14 
Bom. 189, 194 [Cutchee Memons). 



KHOJAS AND CUTCHI MEMOnJ. 


631 


applied also to the joint property held by a Cutchi Memon 
family. The power of a Khoja father to mortgage fa mil y 
property for family purposes was also judicially recognized (o). 

But it has been recently held by that Court that the theory 
of the joint Hindu family does not apply at all to Khojas 
and Cutchi Memons, and that neither a Khoja (p) nor a Cutchi 
Memon son (q), acquires any interest by birth in property 
inherited by his father from his ancestors. 

The Khojas and Cutchi Hemons were originally Hindus. They became converts 
to Mahomedanism about 500 years ago, but retained the Hindu law of inheritance and 
succession. Hence the Hindu law of inheritance and succession is applied to them in 
the Bombay Presidency on the ground of cttslom. This custom is so well established 
among them, that if a special rule of succession opposed to the Hindu law is alleged to 
exist among them, the burden of proof lies on the person setting up such rule (r). Note 
that customs overriding Mahomedan law are recognized by 37 Geo. HI, c. 142, s. 13, 
read with 4 Geo. IV, c. 71, s. 9 (for Bombay), and by Bombay Regulation IV of 1827, 
8. 26 (for the Mufassal of Bombay), 

The following is a synopsis of Khoja and Cutchi Memons cases r — 


I. Khoja cases — 

1. The daughters of a deceased coparcener are entitled against the surviving 

coparceners to no more than maintenance until znarriage and to marriage 
expenses, as among Hindus : Khojas and Memon’s case (s). 

2. A bequest in favour of dharam is void. But the word “ charity ” in a Khoja 

will made in the English form and language does not necessarily mean 
“ dharam " : Qangabai v, Thavar Mulla (^). 

3. By the oustom of Khojas when a widow dies intestate and without issue, 

property acquired by her from her deceased husband does not descend 
to her blood relations, but to the relations of her deceased husband ; Mulbai, 
in the goods of (u). 

Note . — The same is the rule of Hindu law in cases where the marriage is in an 
approved form. 

4. Shivji V, Dattu (v). This case is cited in sub-s. (2). 

5. KahiTribhai, in the goods of (to). This case is cited in sub-s. (i). 

6. There is no special usage prevailing among Khojas entitling a sister to succeed 

in preference to a widow : Rahimatbai v. Hirbai [x). 

7. Ahmedbhoy v. Cassumbhoy {y). This case is cited in sub-s. (2). 


[o) Shivji V. Latu (1875) 12 Bom. H. C. 281. 

\p) Jan Maliorned v. Datu (1914) 38 Bom. 449, 
22 I. C. 195, (’14) A.B. 69. 

(^) Mangaldas v. Abdul 16 Bom. L.B, 224, 
23 1.C. 5C5, (’14) A.B. 17 ; Advocate-General 
V. Jimbabai (1917) 41 Bom. 181, 3i I.C. 
108, (’15) A.B. 151 ; Haji Gasman v. 
Haroon (1023) 47 Bom. 369, 68 I. C. 862, 
(’23) A.B. 148. 


(r) ilahomed Sidirk v. Haji Ahmed (1886) 10 
Bom. 1. 

(#) (1847) Perry 0. C. 110. 

(0 (1863) 1 Bom. H. C. 71. 

(«) (1866) 2 Bom. H. C. 276. 

(i;) (1875) 12 Bom. H. C. 281. 
iw) (1875) 12 Bom. H. C. 294. 

(x) (1879) 3 Bom. 34. 

( 1 /) (1889) 13 Bom. 534. 


S.582 



632 


HINDU LAW. 


S 582 8. The widow of a deceased Khoja is entitled to maintenance out of his property : 

Rashid r. Sherbanu {z). In this case the Court applied the Mayukha in 
dctcrminiii!' the rights of the parties. 

9. In Adeocate-GetieTal v. Karmali (a) it was said that the will of a Khoja is 
to be consiTaed on the basts of the testator having the tesfcamentarj powers 
of a Hindu. But the matter is not free from doubt (6). 

10, A Khoja is not a Hindu within the meaning of the Hindu Wills Act, 1870 •- 

Abdul Karim v. Karmali (c). 

11. A gift to a class some of whom are not in existence at the death of the testator 

is not void in its entirety. The gift in such a case enures for the benefit of 
those inenibers of the class who were in existence at the testitor’s death : 
Advocate-General v. Karmali (d). 

II. Cutchi Memon cases — 

1. A Cutchi Memon is not a Hindu within the meaning of the Hindu Wills Act, 

1870 : Saji Ismail, in the matter of the will of (e). 

2. Ashabai v. Saji Tyeb If). This case is cited in sub-s. {2). 

3. A bequest in favour of an unborn person is void ; Abdul Cadur v. Turner (ff). 
d. Mahomed Sidich v, Haji Ahmed (A). This case is cited in eub-s. (2). 

5. liaroon Mahomed, in the matter of (i). Tliiij case is cited in sub-s. (2). 

6. IVhen a Cutchi Memon testator bequeathed the residue of his property to 

his heirs to be divided among them “ according to Mahomedan law,’' it was 
held that the heirs including the testator's widow took their respective shares 
absolutely, and that she did not take merely a Hindu widow’s estate in the 
property that came to her share ; Hoorbai v. Sooleman (j). 

7. For the purposes of succession to the slridhana of a Cutchi Memon woman 

her marriage, though performed according to the Mahomedan rites, is 
deemed to be in the approved form. In this case the Court applied the 
MayuUha ; 3Ioosa v. Saji Abdul (I). 

3, A Cutchi Memon widow is entitled to maintenance out of the estate of her 
deceased husband, and a Cutchi Jfeuion daughter is entitled to maintenance 
and marriage expenses out of the estate of her father, though he might liave 
leit a will wdiicli is silent about maintenance and marriage expense : Saji 
Saboo Sidick v. Ayeshabai (1). 

h. As among Hindus, so among Cutchi !Memons, an heir who gets into possession 
of the estate is not bound to pay the creditors rateably as under the Indian 
Succession Act, 1928, s. 323 : Saji Sakjo Sidicic v. Ally Mahomed {m). 

(z) (1805) 29 Bom. 85. | A. ]). no. 

(а) (i5o 6) 29 Bom. 133, 148-119. See also i (d) (19tj5) 29 Bom. 133. 

Saltay Mahomed v. Lady Jaatai (1901) (c) (18h2) 0 Bom. 452. 

3 Bom. L. K. 785. (/) (18^5) 9 Bom. 115. 

(б) Mtissonally V. PopatlaHmS) il 'Bom 211, (q) (1885) 9 Bom. 168 

214-215, 17 I. C. 17 ; -UanjaWus V (A) (1880) 10 Bom. 1. 

(1914) 10 Bom. L. 11. 224, 231, 23 I. C. (i> (I890) 14 Bom. 189. 

605, (’14) A.B. 17 ; Advocate-General v. (j) (190i) 3 Bom. L. R 790 

Jim!<a5at(1917) 41 Bom.181, 31 I.C. 108, (t) (19f|6) 30 Bom. 197 

(■15) A.B. 151 [a Khoja case). (ij (1903) 27 Bom 485, 30 I. A. 127. 

(c) (1920) 22 Bom. L R. 708, 58 1. C. 270, (’20) (tm) (19oO) 30 Bom. 270. 



KHOJAS AND CUTCHI MEMOiSJS. 


633 


10. As regards maintenauce, Cutchi Memons are governed by the Mahomedan 
law ; Mahoimd Juaab v. Haji Adam (n). 

H. A Cutchi Memon son does not acquire by birth an interest in property inherited 
by his father from his ancestors : Mangaldas v. Abdul (o). 

12. A Cutchi Memon in Bombay may dispose of the whole of his property by 

will. A Cutchi Jlemon will is to be interpreted according to Mahomedan 
law : Advocate-General v. Jimhabai (p). But see Ko. 1-4 below. 

13. Same ruling as in No. 11 above : Haji Oosman v. Haroon (1923) 47 Bom. 369, 

G8 I. C. 862, (’23) A. B. 148. 

14. The will of a Cutchi Memon is to be construed according to the rules of Hindu 

law: Abdul Sakur v. Abubakar (1930) 54 Bom. 358, 127 I. C. 401, (’30) 
A. B. 191. Abdul Saifar Ismail v. Abdul Hamid Sait (1945) Mad. 276. 

Memons of Mombasa. — Where Memons migrate from India and settle among 
Mahomedans {e.g.y in Mombasa), thepresiimption that they have adopted the Mahomedan 
custom of succession should be readily made. The analogy in such a case is rather a 
proof of a change of domicile than a change of custom ; Abdurahiw v. Halimabai {q). 

Halai Memons of Porhandar in Kathiawar. — They follow in matters of succession 
and inheritance Hindu law and not Mahomedan law, differing in that respect from Halai 
Memons of Bombay ; Kkaluhai v. Mahomed (r). 

Halai Memons of Morvi in Kaihiaioar. — These Memons who have settled at Nadiad 
in the Kaira district, are governed by Hindu law and not Mahomedan law, in matters 
of inheritance, successiou and wills (s). 

Sunni Borah of Gajerat and Molesalam Girasias of Broach. — These are governed 
by the Hindu law in matters of succession and inheritance. These communities were 
originally Hindus, and became subsequently converts to Mabomedanism {t). 

Su7ini Borahs of Borsad. — These cannot be differentiated from Sunni Borahs of 
Gujerat. The jiresumption is that they are governed by the Hindu law of inheritance 
and succession as appUcable to a separated person. There is no presumption that the 
law relating to joint family is applicable to them (u). 


Most of the cases cited above were reviewed by Beajnan, J., in Jan Mahomed v. 
fiatu (v). 


(n) (1913) 37 Born. 71, lo I C’. 520. 

( 0 ) (1914) 10 Bom. L. K. 224, 23 I. C. 505, (’14) 
A.B. 17. 

(p) (1917) 41 Bom. 181, 283, 31 I. C. 1(«8, (’15) 
A.B. 151. 

(g) (1916) 43 I.A. 35, 18 Bom. L.R. 635, 32 I.C. 
413, (’15) A.PC. 86. 

<r) (1923) 50 I.A. 108, 47 Bom. 140, 72 I.C. 202, 
(’22) A.PC. 414, alfnifr. Mahomed llaji 
Abu V. KhaUubai (1919) 43 Bom. 647, 51 
I. C. 513, (’18) A.B. 39 (Porbaudor) ; 
Aisha Bee lice v. Xoor Mohammed (1932) 


10 ItaiiS. 4GI, 140 I.C. 143, (’32) A. R. 
179 (Gondnl). 

(«) Adambhai v. AUarakhia (1935) 37 Bom. 

L.R. 086, (’35) A.B. 417. 

(0 Bax Baiji v. Bax Santok (1890) 20 Bom. 53 : 
* Fatesangjx v. Uarisangji (1890) 20 Bom. 
181. 

(tt) Bai Sakar v. Fora Tsmail (1936) 60 Bom. 
919, 3S Bom. L. R. 1034, 167 I.C. 380, 
(■37) A. B. 65. 

(v) (1914) 38 Bom. 449, 22 I. C. 195, di) 
A.B. 59. 


S.5S2 



634 


HINDU LAW. 


S.583 


583. The Cutchi Memons Act, 1920 .— It is now provided 
by the Cutchi Memons Act, 1920, and the Cutchi Memons 
(Amendment) Act, 1923, that any person who satisfies the 
prescribed authority — ■ 

(a) that he is a Cutchi Memon and is the person whom 
he represents himself to be, 

(b) that he is competent to contract within the meaning 
of section 11 of the Indian Contract Act, 1872, and 

(c) that he is resident in British India, 

may by declaration in the prescribed form and filed before 
the prescribed authority declare that he desires to obtain the 
benefit of this Act, and thereafter the declarant and all his 
minor children and their descendants shall in matters of succes- 
sion and inheritance be governed by the Mahomedan law. 
A similar Act has been passed with reference to aU Muslims in 
British India providing for the application of the personal law 
of Muslims instead of customary law (Act XXVI of 1937). 
See Mulla’s Mahomedan Law, 12th Edition, p. 3. 



635 


CHAPTER XXVII. 
IMPARTIBLE PROPERTY. 


584. Impartible Property.— (I) Property, although partible 
by nature, may, by custom, or by the terms of a grant by 
■Government, be impartible, in the sense that it always devolves 
on a single member of the family to the exclusion of the other 
members. 


(2) An impartible estate may be ancestral, or it may 
be self-acquired. 

The following are inatanoea of impartible properties : — • 

(1) Ancient Zamindaries, which partake of the nature of a Kaj or sovereignty; 
{2) Zamindaries which descend to a single member by special family custom (w) ; (3) 
Talayams in the Madras Presidency (*) ; (4) royal grants of revenue for services, such as 
Jaghira (j/) and Saranjams ( 2 ) in Bombay ; (5) service tenures such as Digwari tenure (a), 
and tenures attached to village offices in Madras (6). The discontinuance of services 
attached to an impartible watan does not make it partible (c). See also Bengal Begu- 
Jations 11 of 1793, and 10 of 1800. 

The Crown has power in British India by a grant of lands to limit their descent 
4n any way it pleases, but a subject has no power to impose upon lands, or other property 
any limitation of descent at variance with the ordinary law applicable (d). 


585. Property impartible by custom. — Where it is alleged 
that an estate is impartible by custom, either territorial or 
of the family, the burden of proof of the custom lies on those 
who allege it. The custom must be ancient and invariable, 
and estaftished by clear and unambiguous evidence. Only an 
estate of considerable age can be considered as being governed 
by an ancient and invariable custom ; it is doubtful whether an 
estate of which the origin dated back only to 1796 could be 
regarded at the settlement in 1863 as being so governed (e). 

A settlement of regrant by the British Government of an estate which existed before 
the British rule must be presumed, in tlie absence of evidence to the contrary, .to con- 
tinue previously existing incidents of impartibility and descendibility to a single heir (/). 


(ic) See BaijnaC/i v. Tej Bali Singh (1921) 48 
I- A. 195, 43 All. 228, 00 I.C. 534, (’21) 
A.PC. 62. 

(z) Kachi V. Kacld (1905) 28 Mad. 508, 32 
I. A. 261. 

(y) See Raghojirao v. Lakshmanrao (1912) 36 
Bora. 639, 39 I. A. 202, ]6 I. C. 239. 

( 2 ) Ramchandra v. Venkalrao (1882) 6 Bom. 
598 ; Narayaii v. Vasudeo (1891) 15 Bora. 
247. 

<a) Durga Prasad Singh v. Brajanath Bose (1912) 
39 CaJ. 096, 39 I. A. 133, 35 I. C. 219. 


(5) Bada v. Hussu Bhai (1684) 7 Mad. 236. 

(c) Radhabai v. Anantrav (1885) 9 Bom. 198 

[Service Vatanl ; Mahatab Singh v. Badan 
Singh (1921) 48 I. A. 446, 461, 48 Cal. 997, 
64 I, C. 194, (’22) A.PC. 146. 

(d) Rajindra v. Raghuhang (1918) 45 I. A. 134, 

40 All. 470, 48 I.C. 213, (’18) A.PC. 25 ; 
Ramrao v. Yeshvantrao (1886) 10 Bora. 
227 [Deshpande Vatan). 

(f) Martand Rao v. Alalhar Rao (1928) 55 I. A. 

45, 55 Cal. 403, 107 1. C. 7, ('28) A.PC. 10. 
If) Martand Rao v. Malhar Rao, suvra. 


5{^58S 



636 


HINDU LAW. 


Ss. 

586, 587 


586. Accretions to impartible property. — It is open to tlie 
bolder of an impartible estate to incorporate any self-acquired 
property of his with the estate, but an intention to do so either 
expressed or implied, must be established and whereas in the 
case of a lunatic he is incapaljle of expressing his intention, 
the Court has to consider Avhat is beneficial to him {g). The 
income of an ancestral impartible joint estate is not so affected 
by its origm that it should be assumed to accrete to the estate. 
The hicome when received is the absolute property of the holder 
of the estate. It differs hi no way from, property which he 
might have gained by his omi effort, or acquired in circum- 
stances entirely dissociated from the ownership of the estate. 
Therefore tlio principle applicable to ordmary jomt family 
estate that self-acquired moneys a,re to be regarded as joint 
property if mixed with the money of the jomt family, does not 
necessarily apply to property acquired by the holder of an 
impartible estate out of the income [h). 

Thua where the decca.'jed holder of an aiice.stral impartible estate hr d applied savings 
out of the income to purchasing immoveable pioperties and making loans, the rents and 
interest being received by the manager of the estate and treated in hi.5 books as part of the 
estate, it was held by their Lordships of the Privy Council that the property so acquired 
had not become part of the impartible estate, but remained tire separate property of the 
deceased holder (t). Whether any immoveable property acquired out of the income has 
been incorporated with the impaitible estate depends on the intention of the holder but 
moveable property such as the income of the impartible e.stato cannot bo so 
incorporated (jj. 

It follow.s from the principlts laid down in the .section tliat the right to lecovet arrears 
of rent become duo in the lifetime of the last holder passes to hi.s heir."", and not to the 
person who succeeds to the estate it). 


587. Impartible properly whether coparcenary property.— 
lu consicleririg whether an ance.stral impartible estate is copar- 
cenary property or not, a distinction should be drawn between 
present rights, that is, the right to demaird a pailition and the 
right to joint enjoyment, and future rights. In the case of an 
ihifartihle estate, the right to partition and the right of joint 
enjoyment are from the very nature of the property incapable 
of existence, and there is no coparcenary to this extent. No 


(?) Homenhivnn J'rusad v. Mahashuan riasad 
(1930) 03 I. A. 441, 16 Pat. 1, 165 I.C. 
347, (*30) A PC. 332. 

{h) Jufjadamba Kinnari v. A'arain Singh (1023) 
50 I. A 1, 2 Pat. 310, 77 I. C. 1041, ' 
(’23) A, PC "tQ ] Janki Pershadv. Dwarka \ 
Pershad (1013) 40 I. A. 170, 181, 35 AU 
391, 401, 20 I. C, 73; Murtaza Busain 
Khan v. Muhomed Yasin (1916) 43 I 
A. 269, 281, 38 AU. 552, 507, 36 I. C. 299, 
(’10) A. PC 89 ; 5nma(t Parbativ Jagadxt 


Chuii'ler (1902) 29 CaL 433, 453, 29 I. A 
82, OS. 

(i) (1923) 501. A.l,2Pat. 319, 77IC 1041, (’23). 

A VC. 5'), supra • r/arqoviiui Singh v. 
Collcrlor of FAah (1937) All. 292, 169 I. C. 
741, (’37) A. A. 377. 

(j) ShifHtpfam'l Singh Pravag Juimari Pebee' 

(1922) 59 Oil. 1399, 59 I. A. 331, 138 I. C 
861, (’32) A.PC. 210. 

(A;) Apnrna v. STce SJtiba Prat^aii (1924) 3 Pa 
307, 33 r C 023, (’24) A. P. 451. 



IMPAKTIBLE PROPERTY. 


SET 


coparcener, therefore, can prevent alienations of the estate by 
the holder for the time being either by gift or l\v will [s 5SS]. 
nor is he entitled to niaintenance- out of the estate [s. oS9]. But 
as regards futiu'e rights, that is. the right to surrivoiship, the 
property is to he treated as coparcenary propert}u S':* that 
on the de.iith intestate of the, last holder, it \vill devolve by 
survivorship aecordmg to the roles stated in sec. 591 below ft). 
The riglit of a jimior nieinber to succeed to the estate by snrii- 
vorship is not a mere spes successionis but a right of property 
which can be transferred (m). 

“ M'liere ptLiperty is held in coparcenary bj* a joint Hindu family, there aie crdinanlfy 
three rights vested in coparceners — the right of joint enjojment, the right to *: all fior 
partition, and the right to survivorship- Where impartible property is the snfci-rct 
such ormership, the right of joint enjoyment and the right of partition as the rishi: of an 
undivided coparcener are, from the nature of the property, incapable of esistenee, Bal 
there being nothing in the nature of the property inconsistent with the right of surviV'^r- 
ship, it may be presumed that that right remains ” (Jt). The right of survivorsbirp is 
not affected by the impartible nature of the property, so that if the family were pEiat 
and the hst holder died intestate, the estate would devolve by survivorship acconiitii^ 
to the rules stated in sec. 591 below. 


588. Alienation of impartible property. — (i) The holder 
of an impartiiile estate has power to alienate the estate, 
though ancestral, by gift or by will, imle.ss the power of aliena- 
tion is excluded by special famih^ custom or by the nature 
of the tenure (o). The absence of any histance in which a 
pre\ious holder has alienated the estate by gift or will is not 
by itseK sufficient effidence to establish such a custom (»). 

{2) Where the estate is by custom inahenable. the holder 
cannot alienate it excepit for legal necessity {q) [s. 5'2S]. 

See the iladras Impartible Estates .-ict, 1904, and the Arni Jagir Act, 19ClS. 


589. Eight to maintenance out of impartible property, — \J),. 


No coparcener has any present 
[s. .587]. Apart, therefore, front 
liolder. the junior rnenihers of 
ruaintenance out of .sucii e.state 


ill F'fiij Jy'tiiA V, Tej Jiah /iin'jh 4^i l.A, 

i05, 211-213, 43 All. 22, >5. f/t I'-. r,3S : 
Konamr/idl v, AnYindana I. A. 

114, 51 ifafl. ISO, r’2&) A. VC bS. 
tnu ~f-lhipa V Suj'T'On (1937) llAd. 906, 171 l.C. 
21-5 ('37; A. K. 49-1:. 

(nj y-ir^!/pinti. V. I Mad 

approval) in Kf/'-Jii v. 

Knchi Yt/ra MOOo) 32 T.A, 2fil, 2?i 3fad 
fjO^ ; Atid F>ftiyr\.nth v, Tf) Bah SiP'/h (I02t t 
4i {. A 43 All. 228, 60 1, C. 534, (’Zf) 

A. PC'. 62 

fr^i Eani Sarfaj haari v T>«arrx) Kauri i 1886) 15 
I- A, SI, 10 All- 272 fsfJltj ; 6>i Bajn Yen- 
iota ^uryfi v„ ('miff oj Wartlfs (1800) 26 I. i 
A, 83, 22 Mad. 383; B/otap C'handrn I 


right.s in an impartifcle estate 
custom and relationship to the 
tie farnilj.- have no right to. 
(/•; Tl.e .Ju.lici.al cornitirtee 


V. Ja'j-iaii'i i. 1 'j:- 7 ; 54 I. A . 2>';, 

54 CUL ms, U'2 I C 5*j6. ('27', A PL 
ISy Bun Jttn-iiyuAtui'Vd Khf‘i>Hidnu;i 

fldiiO, -j BiC 'YVl. UL r. i , 4dA' '30’ A. ? 
137, ic wA;a ht'Ul dissiiurixiA trnni 

Oripai Pra-'-ii Pr-j/riaatk .12 CaI. 

1 j 8, thAC tlwt KirLi.j.i.t MaJial uf Orissa, 
knrjtvn Patu Kiiiah wild ainaiacKi. 

rp) Protap Cn>zr-ii>''t- v fa-jn.i'.ih Cha-ndra. siij)nL 
(i?) Bopai V, 1 7‘jiirfuif^ ' liiOi'i 32 Cai. 15rt 
f/j Hjja Raaia Eaov .j/ p-£7f.6ou.r ! 101.81 4.) 
1,A. 14'^, 41 M.id. 77-5, 47 I. C . 3.H (’iiii 
A. PC. .81 a'fnt.r Pifn. Bow r 

Bajah of Pdtapnr (lOlft) 3^) IT-id. 306 25 
I- C. 356, ('16) A. 51- 27 ( I-VIT'} 54 1. A 
289, 54 CAI, 955, 102 I. C. 599', {'27^ 
A. TC. 159, fitpra. 



638 


HINDU LAW. 


S.589 


has recently held that the illegitimate sons of a junior memher 
are not, under the Law, entitled to maintenance. In the par- 
ticular case the claim was also based on a deed of maintenance. 
Their Lordships held that the words Purusha Santhathi 
either way of Aurasa or by way of adoption ” do not include 
an illegitimate son (s). 

(2) Where an impartible estate is held as ancestral or 
joint family property, the soils of the holder thereof are entitled, 
by custom, to maintenance out of the estate. This custom has 
so often been judicially recognized that it is not necessary to 
prove it in each case (t). But where the impartible property is 
the self-acquired property of the holder, his son is not entitled 
to maintenance out of it (u). 

(3) There is no invariable custom by which any member 
of the family beyond the first generation from the last holder 
[e.g., the last holder’s grandsons] can claim maintenance as of 
right (v). 

llliutration. 

The holder of aa impartible Raj adopts a son to him. He then devises the Raj 
hj will to a son born of one of his wives after the adoption. After the Raja’s death a 
son of the adopted son sues the devisee for maintenance. No evidence is given of any 
special custom by which grandsons of the last holder can claim maintenance as of right 
Is the plaintiff entitled to maintenance ? No. He cannot claim maintenance as a copar- 
cener, for no coparcener has any present rights in an impartible property [a. 587]. He is 
not entitled to maintenance on the ground of personal relationship, for a Hindu is under no 
personal obligation to maintain a grandson [s. 542]. Nor is he entitled to maintenance 
by custom, there being no evidence of any special custom : Raja Rama Rao v. Raja of 
Piitapur (1918) 45 LA. 148, 41 Mad. 778, 47 I.G. 354. ( IS) A.PC. SI. 

Grants made out of the revenues of an impartible estate for the maintenance of the 
junior members of the family and their direct male hne revert, on the death of the last 
male heir of the grantee, to the estate fir). 

The amount of maintenance payable to a junior member of a family holding an 
impartible estate as such is not assessable to income-tax ( i). 


(») Raja Valugoii Sarvagna Kumara Krithna 

Fachendra Bahadur Vars v. Raia Rajetidra \ 
Rao dc Ors. (1942) Mad. 419, 198 I.C. 166, 

68 I. A. 181.-(’42) A.PC. 3. I 

(t) Sri Rama Rao V Raja of PUtapur (1921) i 

45 1. A. 148, 41 Mad. 778, 47 I. C. 354. I 

(’18) A. PC. 81 , Rani "Sartaj Euari v. ' 

Deoraj Kuari(lSSB) 15 1. A. 51, 10 All. 272; 
Raja Yarlagadda v. Yarlagadda (1900) 27 
I.A. 151, 24 Slad 147; Katehi Ealiyana 
V. Kochi Yuia (1005) 32 I. A. 261. 28 
Mad. 508. 

(u) Subb/iyya Tecar v. Harudappa Pandian 

(1937) Mad. 42, (’36) A. M. 828; ffar- 
govind Singh v. Collector of Etah (1937) 
AU. 292, 169 1. C. 744, (’37) A.A. 377. 


(r) 45 I.A. 148, 41 Mad. 778, 47 I.C. 354, (’18) 
A. PC. 81, supra ; Nilmony v. Hingoo Lull 
(1880) 5 Cal. 256, 259. In Madras the rule 
la now modified by Madras Act XII of 1934. 
(tr) See Durgadut v. Rameshwar (1909) 36 I. A. 
176, 36 Cal. 943, 4 I.C. 2 (Babuana grant] ; 
Ekradtshicar v. Janeshwari (1914) 41 I.A. 
275, 42 Cal. 5S2, 25 I.C. 417, (’14) A. PC. 
76 fSobag grant] ; Sonieshwari Prasad 
V. Maheshicari Prasad (1936) 63 I. A. 
441, 16 Pat. 1, 165 I.C. 347, (’36) A. PC. 
332 

(/^) Commissioner of Income-tax v. Zam»nd<ir of 
Chemudu ( 1934) 57 Mad . 1023. 151 I.C. 926. 
(’34) A. M. 608; Ftiayafuznda ffaipAftroL? 
V. Commissioner of Income-tax (1934) 56 
All. 1009. 



IMPARTIBLE PROPERTY. 


639 


The income of the house property (part of an impartible estate) to which the assessee 
has succeeded by the rule of primogeniture is not chargeable in his hands for the pur- 
pose.s of section 9 of the Income-tax Act as an individual. But interest is so chargeable for 
purposes of sections 8 and 12 (y). 


Succession to impartible estate. 

590. General principles. — (i) The general principles in 
regard to succession to an impartible estate are well established. 
The first principle is that the succession is governed by the 
rules which govern the succession to partible property, subject 
to such modifications only as flow from the character of the 
property as an impartible estate. The second principle is 
that the only modification which impartibihty suggests in 
regard to the right of succession is the existence of a special 
rule for the selection of a single heir when there are several 
heirs of the same class who would be entitled to succeed to 
the property if it were partible imder the general Hindu law. 
The third principle is that, in the absence of a special custom, 
the rule of primogeniture furnishes a ground of preference. 
In determining the single heir, we have first to ascertain 
the class of heirs who would be entitled to succeed to the 
property if it were partible, regard being had to its nature 
as joint or separate property, and we have next to select the 
single heir, applying the special rule (z). 

[2) (Sons.— According to the rule of primogeniture, if 
the last owner dies leaving sons, the eldest son is entitled to 
succeed. The eldest son is the son who was born first, not the 
first born son of the senior wife (a), unless there is a family 
custom that the sons take rank according to the seniority of 
their mother (6). Therefore the son of a junior vdfe succeeds 
in preference to the later born son of a senior wife, or of the 
first married wife. 

So lorrg as the line of the eldest son continues in 
possessiorr, the estate wiU pass iir that line. That is to say, on 
the death of the eldest soir, leaving sons, it will pass to his 


(l/) Commissioner of Income-tax, Punjab v. - 
Hriehna Ktehore (1942) Lftli. I, 196 I.C. j 
707, 68 I.A. 155, (’41) A. PC. 120. ! 

(z^ Subramanya v. Sira Subramanya (1894) '■ 
17 Mad. 316, 325, cited with approval in j 
Parbali Kumvar v. Chnndarpal Kunwar ' 
(1909) 36 I. A. 125, 136, 31 All. 457, 475- : 
476, 4 I.C 25 ; Katama Natchiar v. Rajah [ 
of Shivagunga ilSQZ'^ 9 T. A. 543, 2 W. } 
B,. P. C. 31 ; Raijnatk v. 2'ej Bali Singh < 
(1921) 48 I. A. 195, 212, 43 All 228, 244, i 
60 I. C 534, (’21) A. PC. 02 ; Mutfuvadu- i 


ganadha Terar v. Periasami (1896) 23 
I. A. 228, 137, 19 Mad. 451. 457; Raja 
Jogendra v, JVitayanwwd (1890) 17 I. A. 
128, 131, 18 Cal. 151, 154. 

(a) liamalakshmi v. Sivananlha (1872) 14 M. I. 

A. 570, 17 W. II. 553 ; Jagdish Bahadur v. 
Sheo Partab (1901) 28 I. A. 100, 23 All. 
369. 

(b) Ramasami v. Sundaralingasami (1894) 17 

Mad. 422, affmd. Sinidarlingasnmi v. 
Ram%sami (1899) 26 I. A. 55, 22 Mad. 515. 


Ss. 

589,593 



640 


HINDU LAW. 


Ss. 

590, 591 


eldest soil and not to liis brother (c). See ill. to sec. 591. As to 
the effect of adoption in families owning impartible estate on 
other branches see secs. 472 and 506. 


If an aurasa son is born after the adoption, the former 
alone succeeds to the impartible estate {cl). 

(3) Illegitimate son of a Siulra . — If the holder of an 
impartible estate, belongmg to the Sudra caste, dies leaving a 
legitimate son and also an illegithnate son, the legitimate son 
would be preferred to the illegitimate son ; this seems to follow 
from the fact that on a partition the legitimate son is so 
largely preferred (e). If there has been no partition between 
the sons, and the legitimate son dies without leaving male 
issue, but leaving a widow and daughters, the illegitimate son 
would, as m the case of partible property, succeed by survi- 
vorship in preference to the widow and daughters of the 
legitimate son (/) [s. 312]. 

(4) Whole and half-blood. — ^Nearness of blood is no ground 
of preference under the Mitakshara law in case of disputed 
succession to coparcenary property which is partible, and it 
is Hkewise no ground of preference when such property is 
impartible. Therefore, in a joint family, an elder brother of the 
half-blood is entitled to succeed to an impartible ancestral 
estate in preference to a younger brother of the whole blood. 
But the latter would succeed in preference to the former, if 
the estate was the separate or self-acquhed property of the 
last holder (g), or if the case was governed by the Dayabhaga (/«). 

(-5) Fresh stock of descent. — ^As in the case of succession to 
phrtible property, so in the case of impartible property each 
male owmer becomes a fresh stock of descent (i). 


591. Where estate ancestral, and last owner undivided. — 
(I) Where the impartible estate is ancestral, the successor 
to the estate in a joint fanaily governed by the Mitakshara 
,,,j.^^signated by survivorship. The estate passes by survivor- 
ship from one line to another according to primogeniture, 


(0 (1894) 17 Mad. 422, 434, supra. 

(d) Sah^lfyoudaw. Shidda7igouda {IQZy) Bom. 314. 

(,€) ZiamagaHn v. Sundarimjiasaiiu (1804) 17 
Mad. 422, 434-435. 

(/) Raga Jogendra v, Xiti/anund (1890) 17 I. A 1 
123, 131, 13 Cal. 151, 154. I 


(g) Subramanija v. .Siia Subramanya (1894) 
17 Mad. 316, also 17 Mad 422, supra. 
(A) Seelkisto Deb v. Beerchunder (1809) 12 M. 
1 A. 523, 12 \V. li. P, C. 21 [the Tipperab 
Ilaj cafee], 

(i) MuUuvaduyanadha Tcvar v. Penasa7iii (1896 ) 
23 I.A. 128, 19 Mad. 151. 



IMPARTIBLE PROPERTY, i 


641 


and devolves not on the member nearest in blood, but on 
the eldest member of the senior branch (j). 

(2) In the absence of custom a female cannot inherit 
an impartible ancestral estate belonging to a joint family 
governed by the Mitakshara, where there are any male members 
of the family who are qualified to succeed to the estate (k). 
But where she is the widow of the last survivor, the law of 
succession to separate property applies, and she can succeed 
as in the case of partible property (Z) [s. 592]. 

IHvsIralion. 

diagram, A stands for the last holder ; Sj is hia son, Sg and 
L are the two sons of S^, L being the younger of the 
two ; Sj is the son of 82 - A dies leaving S 3 and L. 
Sj, being the surviving member of the senior line, is 
entitled to succeed in preference to L, though L is 
one degree nearer to the common ancestor (A) than 
Sg ; Baij Nath v. Tej Bali Singh (1921) 48 I. A. 19S, 
4.8 All. 228, 60 I.C. 534, ('21), A. PC. 62. 


In the accompanying 


A 



592. Where estate ancestral, but last owner divided.— 
{1 ) Where the impartible estate is ancestral, but the last holder 
was separated, the estate in cases governed by the Mitakshara 
will descend according to the ordinary rules of succession 
applicable to partible property (m). Thus if the last holder dies 
without leaving male issue, but leaving a widow, the estate will 
pass, in the absence ot any custom to the contrary, to the 
widow {n), and, if there be no widow, to his daughter (o). If 
there be none of these, the estate will, if there be no indication to 
the contrary, descend according to the rule of primogeniture. 
In that case if there are more persons than one standing in the 
same degree of relationship to the last holder, the eldest, if all 
belong to the same line, and the eldest in the senior branch, if 
there are more branches than one, ivill be the preferable heir 
[s. 43]. 


(;) raijnath v. Tc} Bali Suigh (1921) 4S I.A. 
195, 43 All. 228, 60 I.C. 534, (’21) A.PC 
62 affine. 38 AH. 590, 38 I.C. 894 ; Kachi 
Kalixjana v. Kachi Yma (1905) 32 I.A. 
261, 28 Mad. 501 ; Naraganti v. Kayani- 
varxL (1882) 4 Mad. 250 ; Sahebgouda v. 
Basangouda (1931) 33 ]b»m. L.R, 580, 
133 I.C. 847, (’31) A.15. 378; Shibapnisad 
Singh v. Prayag Kvmnrx Vchfc (1932) 50 
Cal. 1309, 50 I.A. 331, 13H I.C. 80J, 
(’32) A.PC. 216. 

{k) Hiranath Koer V. Buhoit Ilntti (iSl'Z) 0 Moiie. 
L. R. 274; Chniiidry Cfiiiiftimuti v. 
samut Noivlukho 2 I.A, 20.3, J Cal. 

153. 


(?) 8ee SiiRojah Yenumulaw Yenumula (1870) 
0 ilad U=C. 93, 109. 

(m) Chiini Lai Official Receiver v. Jai Gopal 

(1936) 17 Lah. 378, 163 I.C. 103, (’36) 
A.L. 55. 

(n) Thakurani Tara Kuman v. Chatnrbhuj 

(1915) 42 I.A. 192. 42 Cal. 1179, 30 I.C. 
833, (’15) A.PC. 30. See also Sri l<a]a- 
lak'shmi Dei'i v. Sn Uajci Sttrxja (1897) 24 
I.A. 118, 20 Mad. 256. 

(o) Sea Mst. Parbati Kxinwar v. Chandarpal 

Kunivur (1909) 36 I. A. 125, 31 All 457, 
4 I.lb 25 [cn.stoni apjilioable both to 
partible and Impartible estates]. 


Ss. 

591, 592 


21 



642 


HINDU LAW. 


Ss. 

592-595 


(2) The onus of proving a custom excluding females 
from succession to a separate impartible estate rests upon 
the person who sets up the custom (p). 

In Boine cases another rule of selection and not primogeniture may be the governing 
rule of the family (g). 

593. Proof of separation where estate ancestral. — In order 
to establish that an impaidible estate has ceased to be joint 
property for the purpose of succession, it is necessary to 
prove an mtention, express or imphed, on the part of the 
junior members of the family, to give up their chance of 
succeeding to the estate. A mere separation in general status 
is not sufficient (r). 

594. Wliere estate self-acquired. — Where an impartible 
estate is self-acquired property, the estate in cases governed 
by the Mitakshara follows the course of succession as to 
separate property [s. 592], though the last holder was undivided 
at the time of his death (s) [s. 43]. 

lUiishation. 

The holder of an impartible Zamindnri dies leaving a widow and undivided nephews. 
It is proved that the Zamindari was his self.aequired property. The widow is entitled 
to succeed in preference to the nephews : The Shieagunga case (1863) 0 M. I. A. 539. 

A Hindu governed by Mitakshara law who took a vested interest in an ancestral 
impartible estate under a deed of settlement executed by his father while his elder brother 
was alive and before the coming into force of the Madras Impartible Estates Act took 
the estate as self-acquired property. His widow succeeds to him as heir in preference 
to his half-brother (<). 

S94A. A decree was passed against the holder of an 
impartible estate for compensation m hen of specific perform- 
ance of a contract to transfer a part of the estate. It was 
held that as the decree was passed against the defendant hi 
a representative capacity it could be executed against his son 
and successor {u). 


595. Dayabhaga school. — In cases governed by the 
Dayabhaga, the heir will be the eldest member of the class of 
persons which is nearer of kin to the last owner than any other 
class [s. 88]. 


{p) Avierandra v. Banamalx (11)31) 10 Pat. 1, 
123 I.C. 770, (’30) A P. 417. 

[q'l Ishri Sxnqh v. BalOeo fSinqh (1884) 11 I. A. 
135, 10 Cal. 792, Achal Ham v. XJdax 
Partab (1884) 11 I.A. 51, 1 Cal. 51 . 
Mohesh Chunder v. Balrwjhati (1902) 29 
I.A. 62, 29 Cal. 343. 

(r) Konammal v. Annadana (1928) 55 I A. 

114, 51 Mad. 189, 108 I.C. 354, (’28) i 
A PC. 68 ; Jagadamba Kumari v. Narain \ 
Singh (1923) 50 I.A. 1, 2 Pot. 319, 77 
I.C. 1041, ('23) A.PC. 59; Ham Simdar 
V. CoKector of Gorakhpur (1930) 52 All 
793, 126 I.C. 237, ('30) A. A. 797, affirmed 


by P. C. in Collector of Uorakhpur v. Ham 
Sundar Mai (1934) 56 All. 468, 61 I.A 
286, 150 I.C. 545, (’34) A.PC. 157; 
Lingappa liayappa v. Kadappa liapurao 
(1940) Pom. 721, 191 I.C. 504, (’40) A.B 
845. 

(a) Ealama Eatchiar v. Hajah of Shitagvnga 
(1863) 9 M.I.A. 530, 2 \V. R. P. C. 31 ; 
Penasami v. Periasami (1878) 5 I.A. 61, 
1 Mad. 312. 

{<) Ulagalam Pe^'umal Scthurayan v. Hama 
Subbalakshmx Nacinar (1939) Mad. 443. 
(u> Jiao lihiniaingh v. Gangaram (1941) Isns:. 
032, 193 I.C. 598, (’40) A.N. 278. 



643 


CHAPTER XXVIII. 

THE LAW OF DAMDUPAT. 

596. The rule of damdupat- — The rule of damdupat is a S. 593 
branch of the Hindu law of Debts. According to this rule, the 
amoiuit of interest recoverable at any one time cannot exceed 
the principal (u). 


llluslraiioii. 


lends Rs. 1,000 to B at interest at 15 per cent, per annum. A allows the interest 
to run into arrears until it amounts to Rs. 1,200, that is, until it exceeds the principal 
(Rs. 1,000). -4 then sues B to recover Rs. 2,200, that is, Rs. 1,000 for principal and 
Rs. 1,200 for interest. A is not entitled to more than Rs. 1,000 for interest, as that 
is the amount of the principal. But if B pays A Rs. 400 for interest before suit, and A 
then sues B to recover Rs. 1,800, that is, Rs. 1,000 for principal and Rs. 800 for. interest, 
A is entitled to Rs. 800 for interest, for it does not exceed the principal Rs. 1,000, though 
he will thereby be getting Rs, 1,200 in all fox interest. The reason is that the payment 
of Rs. 400 and the payment of Rs. SOO would be payments at different timeSy and all 
that the rule of damdupat says is that a creditor is not entitled at any one time to recover 
interest exceeding the amount of the principal. The rule of damdupat does not say 
that ft creditor shall not in any case be entitled to interest exceeding the principal. The 
result is that part payments of interest made before suit cannot bo added to the amount 
of interest claimed in the suit so as to attract the application of the rule of damdupat. 

Reason of the rale. — The'Hindu law did not recognise any rule of limitation for the 
recovery of debts. Every debt which was lawful was binding and recoverable from the 
debtor irrespective of the period which may have elapsed since the original liability 
was incurred. It thus became necessary to impose a restriction on the amount of interest 
recoverable by the creditor, and such a restriction has been imposed by the rule of 
damdupat (zy). 

The Deccan Agriculturists^ Relief Act, 1879, sec. 13, cl. (g). — The rule of damdupat 
has been enacted in sec, 13, cl. (g), of the above Act. 

The Usury Laws Repeal Act, 1855. — The rule of damdupat is not superseded by the 
Usury Laws Repeal Act, 1855. According to that Act, the Court is bound to award 
interest at the contract rate, whatever the raXe of interest may be. But in cases to which 
tlie rule of damdupat applies, the creditor cannot at any one time recover interest exceeding 
the amount of the principal {x). 

The Indian Limitation Act, 1008. — The rule of damdupat is not affected by the Limi- 
tation Act. According to that Act, the period of limitation for a suit for money lent 
is three years from the date of the loan. A creditor, therefore, may sue for the loan and 
for arrears of interest for three years, whatever the interest may amount to. But in cases 
to which the rule of damdupat apjjlies, he cannot at any one time recover interest exceeding 
the amount of the principal {y). 


(v) Dhondu v. Narayan (18G3) I 13om. H.C. 47 
Hariram v. Mitdun Uoptil (1028) 33 C. "W 
N 493, 497, 114 [.C. 'jO.-j. ('29) 77 

(it) Gajadhar v. Jaqannalh (1924) 46 AIJ. 775 
782, 80 I.C. 084, ('24) A. A. 551 [F.B.l 
(f) EhashalcMnd V. Ibr<ihm\ (1800) 3 Bom. H.C 


A.C. 23 ; Ealona ^lanji v. Memon Ayah 
(1S70) 7 Bom. H. C. O. C. 19 ; Ganpai v. 
Adayji(1879> 3 Bom. 312, 338 ; Hamronnoy 
V, ,/oA«r Z/o^^ (1880) 5 Oil 867. 

(y) (1879) 3 Bom. 312, 332, supra ; Han v. 
BalamM\al (1885) 9 Bora. 233. 



644 


HINDU LAW. 


Ss. 597. Where part of the principal has been paid-— A^Tiere 

597-599 a loan is repayable by instalments, and some of the instalments 
have been paid, or even where it is not payable by instalments 
but a part thereof has been paid, the principal for the purpose 
of the rule of damdupat is the balance of prin.cipal remaining 
due when the interest claimed in the suit accrued {z). 

Illustration. 

A lends Rs. 200 to B at interest at the rate of 10 per cent, per annum. The loan 
is payable by four in.stalments of Rs. 50 each. B pays the first three in.stalment8 and all 
interest due thereon. A then sues B to recover the last instalment of Rs. 50 and interest 
thereon amounting to Rs. do. A is not entitled to more than Rs. 50 for interest, that 
being the amount of principal remaining due when the interest acciued. It does not 
matter that the original principal was Rs. 200. 

598. Capitalization of interest by subsequent agreement-— 
The rule of damdupat does not forbid the conversion, by 
subsequent agreement between the debtor and the creditor, of 
the interest in arrear into capital. Therefore, when a fresh 
bond is passed by the debtor for the aggregate amount of the 
principal and interest due under the old bond, the principal 
for the purpose of the rule of damdupat is the amount of the 
fresh bond {a). 

Illualration. 

B borrows Rs. 500 from A at interest at the rate of 10 per cent, per annum and passes 
a promissory note to A for that amount. No interest is paid by B for two years. At 
the end of the second year, the interest due to A is Rs. 100. A demands the Rs. 500 p!u« 
Rs. 100 from B. B is unable to pay the amount, and he passes a fresh promissory note 
to A for Rs. 600, that is, Rs. 500 (principal) plus Rs. 100 (interest in arrear), promising 
to pay interest on the Rs. 600 at the same rate as before. A subsequently files a suit 
against B to recover Rs. 600, the principal amount secured by the second promissory 
note, and Rs. 550, the interest in arrear on that amount. What is the principal for 
the purpose of the rule of damdupat, is it Rs. 500, the amount of the first note or is it 
Rs. 600, the amount of the second note ? The answer is that it is Rs. 600, the amount 
of the second note. Therefore, A is entitled to Rs. 550 for interest, for though it 
exceeds the original principal sura of Rs. 500, it does not exceed the principal payable 
under the second note, namely, Rs. 600. It does not matter that a part of the principal 
of Rs. 600 con.sisted originally of interest. It was quite competent to A and B at any lime 
after the dale of the first promissory note to agree that the sum of Rs. 100, which represented 
the interest in arrear, should be treated as cajiital so as to carry interest on it. But if 
A and B had agreed, when the original loan of Rs. 500 was made, that all interest in arrear 
should be capitalized and should carry interest on it as if it was a principal sum, the 
agreement could not affect the operation of the rule of damdupat, and A would not be 
entitled to more than Rs. 500 for interest. 

599- The rule of damdupat does not apply after suit- — 
Where a ,suit has been instituted to recover a loan, the rule 
of damdupat ceases to operate. The result is that though the 

(z) Vagiusa v. Jtamchandra (1890) 20 Bom. Oil; I (o) Sukalal v. Bavu (1900 24 ilom. 305. 

yumerii'angi v. Laxman (1900) 30 Bom.452. I 



DAMDUPAT. 


645 


Court is bound to apply the rule of damdupat up to the date 
of the suit, it is free to award interest to the creditor at such 
rate as it thinks proper from the date of the suit up to the 
date of decree or payment npon the total amount that may be 
found due to him after applying that rule (6). 

Illuatration. 

A lends Rs. 1,000 to B at interest at the rate of 25 per cent, per annum. .4 then sues 
B to recover Rs. 2,500 of which Rs, 1,000 is for principal and Rs. 1,500 U for interest. A 
is not entitled to a decree for more than Rs. 2,000 but the Court may, under section 34 of 
the Code of Civil Procedure, 1908, award interest on Rs. 2,000 at such rate as it thinks 
proper ffom fhe date of the suit up to the date of the decree, and it may award further 
interest on the aggregate sum, consisting of Rs. 2,000 plus the interest between date of 
suit and the date of decree at such rate as it thinks proper. 

The rule of damdupat does not apply to interest recoverable in execution of a decree. 
The reason is that the rule ceases to operate after suit (c). 

The principal of this section applies not only to a suit brought by a creditor, but to 
a suit for redemption brought by a mortgagor (debtor). 

600- Places in which the rule of damdupat applies.— 
The rule of damdupat apphes in the Bombay Presidency {d). It 
applies also in the town of Calcutta (e), but not in any other 
part of Bengal (/). The rule is not in force in any part of 
the Madras Presidency {g). The rule is applied by section 6 
of the Sonthal Parganas Settlement Regulation to money 
debts in the Sonthal Parganas {h). 

601. Persons entitled to claim benefit of the rule.— (i) 
According to the Calcutta High Court, the rule of damdupat 
applies only where both the original contracting parties are 
Hindus (i). 

(2) According to the Bombay High Court all that is neces- 
sary for the application of the rule is that the original debtor 
should be a Hindu. The result is that the rule does not apply 
if the original debtor was a Mahomedan, though the debt 
might be subsequently transferred to a Hindu [j). 

The rule does not apply if the original debtor was a Mahomedan, though the creditor 
might be a Hindu {k). But the rule does apply if the original debtor was a Hindu, though 
the creditor might be a Mahomedan (2). 


(6) Code of Civil Procedure, 1908, section 34; 
Dhondshet v. liavn (1898) 22 Bom. 86 ; 
Ma')mudar Hiralal v, Narsilal (1913) 37 
Bom. 326, 338, 40 I. A. 68, 73, 18 I. C. 
909 , Achyut v. liamchandra (1925) 27 
Bom. L. R. 492, 87 I. C. 719, ('25) A. B. 
302 : HaH Lall, \n the matter of (1906) 
33 Cal. 1269, 1276 . Nanda Lai v. Dhiren- 
dra ^'ath (1913) 40 Cal. 710, 21 I C. 974. 

(c) Balkrishna v. Gopal (1875) 1 Bom. 73 ; 

Lall Behary v. Thacovioney (1896) 23 
Cal. 899. 

(d) Narayan v. Satiaji (1872) 9 Bom. H. C. 

83, 85 


(«») yobin Chunder v. Bome'ih Chunder (1887) 14 
Cal 781. 

(/) Uet Nurain v. Bam Dein (1883) 9 Cal. 871. 
\q) Annaji v Bagubai (1871) 6 Mad. H. C. 400. 
(7/) /Cun 7 a Behari v. Tarapada (1019) 
4 Pat. L. ,T. 49, 49 I.C. 374, ('19) A.P. 324. 

(i) ICooTna V. Sreebarinath (1897) 1 C. W. S'. 

(«hort notes) 178 : cf. (1887) 14 Cal. 781, 
stipra. 

(j) JIanUd V. Xagar (1897) 21 Bom. 38. 

(I*) Nancfand v. Bajmsaheb (1879) 3 Bom. 131. 
See Laivood v. Vullubhdas (1894) 18 Bom. 
227. 

(7) Ah Saheb v. Shabn (1897) 21 Bom. 85, 


Ss, 

599-601 



646 


HINDU LAW. 


Ss. 

601, 602 


Where there are two debtora, a Hindu and non-Hindu, the rule applies so far as the 
Hindu debtor is concerned. But this does not prevent the non-Hindu debtor from 
claiming contribution from the former on the basis of the actual payment made by him to 
the creditor (m). 

When the original debtor is a Hindu, and the interest is 
allowed to accumulate so that it exceeds the principal, and the 
debt is then transferred to a Mahomedan, the rule of damdupat 
wiU apply so long as the debtor was a Hindu, but it will cease 
to operate, from the date the debt was assigned to the 
Mahomedan {n) [ill. (2)]. 

Illustrations. 

(1) A Mahomedan, 31, borrows Ks. 61 at interest from a Hindu, X, and mortgages 
his property to X as a security for the loan. 31 then sells his equity of redemption to a 
Hindu, if. X sues H to recover E,s. 270, being Ks. 61 for principal and Rs. 209 for 
interest. H contends that he and X being Hindus, the rule of damdupat applies, and 
that X is not entitled to more than Rs. 61 for interest. The rule of damdupat docs not 
apply, for the original debtor was a Mahomedan, and X is entitled to a decree for Rs. 270: 
Barilal v. Nagar (1897) 21 Bom. 38. 

(2) Hindu, H, borrows Rs. 1 50 at interest at the rate of 1 2 per cent, per annum from 
a Mahomedan, X, on a mortgage of his immoveable property. B then sells his equity 
of redemption to a Mahomedan, 31. X sues 31 to recover Rs. 750, being Rs. 150 for 
principal and Rs. 600 for interest from the date of the mortgage up to the date of the 
suit. X is entitled to Rs. 300 (i.e., double the principal Rs. 150) and the interest thereon 
at the aforesaid rate from the date of the sale to M. If B had not sold his equity of 
redemption to 31, and the suit had been brought against B, X would not have been 
entitled to more than Rs. 300 : Ali Saheb v. Shabji (1897) 21 Bom. 85. 

602. To what transactions the rule applies. — (i) The rule 
of damdupat applies not only to misecured loans, but to loans 
secured by a pledge of moveable property and those secured 
by a mortgage of immoveable property (o). 

- (2) In the case of a mortgage with possession a distinc- 
tion has to be made between two classes of cases, namely — 

(a) where the amount of the annual rents and profits 
is fixed beforehand by the parties and it is agreed 
between the parties that the mortgagee is to receive 
that amount in lieu of interest or a part thereof, 
irrespective of the actual amount of rents that may 
be recovered by the mortgagee ; 

(b) where no such amount is fixed, and there is no such 
agreement between the parties, so that the mortgagee 

_is under a liability to account to the mortgagor for 
the rents and profits received by him from the mort- 
gaged property. 


(m) iTafto Mayadasee v. Abdur Rahim (1837) 
1 Cal. 450, 172 I.C. 731, (’37) A. C. 752 
in) See Ali Saheb v. Shabjx (1807) 21 Bom. 85. 


(o) Naihubhai v. Mulrhand (1808) 5 Bom. H. C. 
A. C. 196, 198 : Narayan v. (1872' 

9 Bom. H. C. 83. 



DAMDUPAT. 


647 


In the first case no account is to be taken of tke rents and 
profits, and all that has to be done is to ascertain what amount 
is due to the mortgagee ior principal and interest as in the case 
of a simple loan. To such a case the rule of damdupat applies 
as it does in the case of an ordinary loan (p). 

In the second case the mortgagee is under a Habihty to 
account for the rents and the profits received by him from the 
mortgaged property, and the rule of damdupat does not apply {q). 

As the mortgagee is to be charged with rents and profits 
it would not be just to stop his interest and consequently 
the rule of [damdupat] cannot be appMed ” (r). 

Illustralions. 

( 1 ) A borrows Ks. 1 ,000 from B at interest at the rate of 20 per cent, per annum. As 
a security for the loan A mortgages his bouse to B and put.s B in possession of the house. 
At the date of the mortgage the house is occupied by A’s tenants. It is agreed between 
A and B that B should receive the rents from the tenants, that the yearly rents should be 
taken at Rs. 150, and that A should pay to B every year Rs. 50, being the balance of 
interest on Rs. 1,000 [Rs. 200 interest— Rs. 150 rent=R3. 50]. B sues A to recover 
Rs. 2,200, being Rs. 1,000 for principal and Rs. 1,200 for interest. Is B entitled to 
recover Rs. 1,200 for interest? No, for as no accounts are to be rendered by B, the 
rule of damdupat applies, and B is therefore entitled to Rs. 1,000 only for interest. 
The decree will therefore be for Rs. ROOO+Rs. I,000=Rs. 2,000. 

(8) The facts are the same as in ill. (1), except that there is no agreement between 
A and B that B should take the rents in lieu of interest. In such a case, if B sued A on 
the mortgage, B would be liable to account for the rents received by him and the rule 
of damdupat would not tlierefore apply. The result is that if it be found on the taking 
of accounts that the amount du'e to B, after giving credit to A for the rents, is Rs. 2,300, 
B will be entitled to a decree for Rs. 2,300, and not merely for Rs. 2,000 as in iU. (1). 

603. Mortgages executed after the passing of the Transfer 
of Property Act, 1882. — It has been held by the High Court of 
Madras that the rule of damdupat does not apply to mortgages 
executed after the Transfer of Property Act, 1882, came into 
force (s). A different view has been taken by the High Courts 
of Bombay {t) and Calcutta {u). 

It has been stated above in section 5 that the rule of damdupat is not in force in the 
Madras Presidency. In the case cited above, the High Court of Madras held that even 
assuming that rule to be in force in the town of Madras, it did not apply to mortgages 
executed after the Transfer of Property Act, 1882, came into force, the reason given being 
that under sections 8(5 and 88 of that Act a mortgagee was entitled to the principal and 
interest in arrears at the contract rate, even if it exceeded the principal. Section 86 of that 
Act provided for a foreclosure decree and section 88 for a decree for sale, aud both these 
sections provided for a decree inter alia for what was due to the mortgagee for “ principal 
and interest on the mortgage.’* See now the Code of Civil Procedure, 1908. 0. 34, 

rr. 2 and 4. 


(p) Sundrdbai v. Jayavant (1900) 24 Bom, 114; 
Nalhubhai v. Mulchand (1868) 5 Bom. H.C. 
A. C. 196 ; Vithal v. Daud (1869) 6 Bom. 
H. C. A. C. 90 ; Narayan v. Satvaji (1872) 
9 Bom. H. C. 83 ; AH Saheb v. Shabji 
(1897) 21 Bom. 85, 87 ; Ganpat v. Adarji 
(1879) 3 Bom. 312. 

(?) Oopal V. Gangaram (1896) 20 Bom. 721 
(F.B.l : Dhondshei v. Ravn (1898) 22 


Bom. 86, 

It) Per Ctou^'h, C. J., In Nathubhai v. Mulchand 
(1868) 5 Bom. H. C. A. C. 196, 190. 

{$) Madhwa v. Venkalramanjula (1003) 20 
Mad. 662. 

(0 Jeewanbai v. Manordas (1911) 35 Bom. 199, 
8 I C 640. 

(ti) Kunja Lai v. Narsamba (1015) 42 Cal. 826, 
31 I.O. 6, (’16) A.C. 642. 


Ss. 

602, 60 



348 


Ss. 

604, 605 


CHAPTER XXIX. 

BEXAMI TRAXSACTIONS 

604- Benami transaction- — a person, buys property 
\nth his own money, but in the name of another person or 
buys property hi his omi name, but subsequently transfers it 
into the name of another person, ivithout any intention in 
either case to benefit such other person, the transaction is called 
benami ”, and the person in wdiose name the transaction 
is effected is called “ benamidar.” 

Origin of benami Iransatlions. — The word benami is a Persian compound word, made 
up of be which means tritbout and nani which means It means literally without a 

name, and denotes a transaction effected by a person without using his own name, but in the 
name of another. The practice of putting propert-y into a false name, .that is, the name 
of a person other than the real owner, is very common in this country, and it exists as 
much among Hindus as among Mahomedans (u). This practice has arisen partly from 
superstition — some persons and some names being considered as lucky, and others as 
unlucky. Partly also the practice is due to a desire to conceal family affair.s from public 
observation. But many transactions originate in fraud ; and many of them which 
did not so originate are made use of for a fraudulent purpose ; more especially for the 
purpose of keeping out creditors -who are told when they come to execute a decree, that 
the property belongs to the fictitious owner, and cannot be seized {w). 

Benami transactions are not confined solely to purchases by one person in the name 
of another. Thus a person may take a ien«c of property m the name of another, or he 
may buy property in his own name and subsequently convey or mortgage it to another 
for a fictitious consideration. 

Benami transactions among Mahomedans are more commonly known as fnrzee. 


TRANSACTIONS 

605. Effect given to real title-- — Where a transaction is 
once made out to he benami, effect will be given to the real 
and not to the nominal title, unless the result of doing so 
would he — 

(i) to violate the provisions of a statute [s. 606 below] ; or 

(ii) to defeat the rights of mnocent transferees for value 
from the benamidar [s. 607 below] ; or 

(iii) the object of the banami transaction was to defraud 
the creditors of the real oAvner, and that object has 
been accomplished [s. 608 below] ; or 

(iv) the transaction is against public policy [s. 609 below]. 

(r) j (,,, Markbp '• r.„„lu and 



BEX AMI TRANSACTIONS. 

> 


649 


Effect given io real title , — There ^ no law w'hich benami transactions, in 

other words, it is not an offence or a crime for A to buy property in the name of B. There- 
fore, where A has bought property in the name of B, and B subsequently chooses to 
say that he is the real oi^Tier, it is quite competent to A to bring a suit against B to 
establish his title and to recover possession of the property from and if it is proved that 
the purchase-monej' came out of *4’s funds the Court will pass a decree declaring that 
A is the real owner, and direct B to deliver possession of the property to A (.r). Simi- 
larly, if property is bought by A in B's name, and 0, a creditor of A, subsequently obtains 
a decree against A, it is competent to C to show that the property really belong to A, 
and if this fact is proved, the property may be attached and sold to satisfy C's decree (^')« 

BesuUitig iriisLs and advancement of wife and children . — It is important to note that 
the law of benami is in no sense a branch of Hindu law. It is merely an application of the 
equitable rule that where tliere is a purchase by A in the name of B, there is a resulting 
trust of the whole to A. In this respect the general rule of the Indian law, which is laid 
down in the Indhm Trusts Act, 1SS2, sec. 82, differs but little, if at all, from the general 
rule of English law on the subject. In both .systems of law, the fact to be first determined 
is from what source the money came with which the purchase- money zoos paid. But in 
England there is an exception when a purchase is made by a person in the name of his 
child or loife, though with bis outi money. In such a case, the transaction is presumed 
to have been m'lde by way of advancement or gift to the child or wife, and the burden 
of proving that there was no advancement or gift lies on the person who so alleges it. 
But this exception is not recognized in India. In this country, where a purchase is made 
by a person with his own money — it is prima facie assumed to be for his benefit, whether 
it is made in the name of a child ( 2 ), wife (a), or a stranger, and there is no presumption 
in favour of an advancement or gift such as there is in the English law. The burden 
therefore of proving an advancement or gift lies on the person alleging that there was 
an advancement or gift. In Gopeekrist v. Gungapersaud{t>), their Lordships of the Privy 
Council said : “ Benami purchases in the names of children, without any intention 

of advancement, are frequent in India.’' But this rule of Indian law applies only to 
natives of India. It does not apply to transactions where both parties are English, 
not even if they were born in India (c). though the transactions may have taken place 
in India and the property may be situated in India (d). It is the rule of English law 
that applies to such transactions. 

In a Privy Council case (e), the question arose whether a purchase of property 
by a Hindu talukdar in the name of his Mahomedan mistress was a benami transaction 
or was intended to be a gift to her. Their Lordships held on the evidence that the pur- 
chase was a benami transaction. In the course of the judgment their Lordships said : 
“ It [benami transaction] is quite unobjectionable and has a curious resemblance to the 
doctrine of our English law that the trust of the legal estate results to the man who pays 
the purchase-money, and this again follows the analogy of our common law that where 
a feofiment is made without consideration the use results to the feoffor. The exception 
in our law by way of advancement in favour of wife or child does not apply in India : 


(x) Tkukrain v. (Jovemnzent (1871) 14 M.X.A. 112. 

(y) Mitsadee Mnhomed v. Meena Ally (1854) 6 

M.I.A. 27 ; Gopi Wasvdev v. Markande 
(1879) 3 Bom. 30’, Abdul Hi/e v. Mir 
Mahomed (1884) 10 Cal. 010. 11 I.A. 10. 

(z) Johnston v. Gopal tSinoh (1931) 12 Lah. 546, 

557. 133 I.G. 628, (’31) A.L. 419 ; Gopnl v. 
Keshoba (1936) Na 2 . 65, 105 I.C. 350. (’30) 
A.N. 185. 

(а) Dharani Kant v, Krislo Kinnari (18861 13 

I.A, 70, 13 Cal. 181 . Thakro v. Ganaa 
Pershad (18881 1.5 I A 29. 10 All, 197. 

(б) (1854) 0 53. af. p 79; Moulvi S^ayuutd 

V. Wussionnf iWbev (1809) 13 .M I.A. 232, 
247 ; Bissesur v LurJunessur (18801 o Cal. 


L.B. 477, 6 I.A. 233 (1880) 13 Cal. 181, 
13 I.A. 70, supra [purcliase in udfe's 
name), Chunder ^llth v. Kristo Eomul 
(1871) 15 W.R. 357. 

(c) Kenoick v. Eertcick (1920) 47 1.-4,. 275, 48 Cal. 

200, 57 I.C. 834. (’21) A.PC. 59 

fpurdiase bv husband of land in Rau-joon 
and t^an^Ie^^ed into wife’s name — 
advancemenf' disproved]. 

(d) Panton v Administrafor-Geiieral (1920) 23 

Bora. L.Tl. 11. 93 TC 161. (’20) A. 
Jomna! 158 fno advniir’em-mtj. 
f^) Bilas Knnivir v. Desra} ri915) 42 I A. 202, 
205 37 AU. 557, 504-505, 30 I.C. 209 
I (’15) A PC. 96. 


. 605 



650 


HINDU LAW. 


s. 605 


Goptekrisl v. Gungapersaud (f) ; but the relatiouiihip is# a circumsfence which is taken into 
conaideration in India in determining whether the transaction is bertami or not. The 
general rule in India in the absence of all other relevant circumstances is thus stated by 
Lord Campbell m Dhurin Dm Panday v. Mussuw/xt Hhama Hoondri Dibiah [y] : The 
critf.Twn in these cases in Jndia is to consider from what source the money comes with which 
the purchase-money is y/aid.” 

In cases of this kind it is material to enquire who enjoyed the income of the property^ 
whether the real owner or the person in whose name the property was bought. Thus 
where property w’as purchased by A with his money in the name of B, and the question 
arose whether the purchase was benami as alleged by or intended to be a gift for B 
in return for his services as alleged by il, their Lordships of the Privy Council held that 
evidence of B'h possession for nine and a half years without being called on by A to 
account for the rents, and of B s performance of valuable services sufficient to establish a 
claim on A'a generosity, was decisive in favour of a gift (k). It is also material in cases 
of this kind to inquire into the position of the parties and their relation to one another 
and the motives which could govern their actions. Thus where property was purchased 
by a Mahoraedan lad}' in her daughter’s name and the transfer w^as impeached by her 
eon after her death as benami, their Lordships held that the resulting inference that 
it was a benami transaction was rebutted by the evidence of gift, and by the proved 
intention of the mother to exclude the son with whom she was on hostile terras from 
iuheritance (i). 

Deposit by husband of his own money in bank in the naynes of hiynsdf and his wife . — 
The deposit by a Hindu of his own money in a bank in the joint names of himself and 
wife, and on tlie terms that it is to be payable to either or the survivor does not on his 
death constitute a gift by him to his wife. There is a resulting trust in his favour in the 
absence of proof of a contrary intention, there being in India no presumption of an 
intended advancement in favour of a wife (j). 

Burden of proof . — Where A purchases property in the name of and subsequently 
sues B for a declaration that he is the real owner of the property, tlie burden lies heavily 
on him to show that he is the real owner. The reason is that what A has really to do 
in such a case is to show that the apparent state of things is not the real state of things, 
in other words, that the i>erson who appears as the owner on the face of the deed is not 
the real owner. The Courts should look with jealousy on benami transactions, and 
they should require from a strict proof of bis title before holding that B is merely a 
benamidar. And although there may be, with respect to benami transactions, circum- 
stances which might create suspicion and doubt as to the truth of the case of the 
benamidar, yet the Courts should not decide upon mere suspicion, but upon legal grounds 
established by evidence (k). When evidence on neither side is -wholly convincing, and 
when the evidence given and withheld is ojien to adverse criticism, the Courts must rely on 
the surrounding circumstances, the position of the parties r.nd their relation to one another 
the motives which could govern their actions, and their subsequent conduct {1}. 

Ante-nuptial agreement, — When it is alleged that a purchase of property in India 
by an Indian out of his own money, but in the name of his -wife, was made in pursuance 


(/) (1864) 0 M.I.A. 53. 

Iq) (1843) 3 M.I.A. 229 • Ram Narain, v. 
Muhammad (1899) 26 I A. 38, 39, 26 Cal, 
227, 230; De Silva v. De Silva (1903) 
5 Bom. L.B. 784 ; Motivahu v. Purshotum 
(1904) 6 Bom. L. R. 975. 

<*) (1899) 26 1. A. 38, 26 Cal . 227, supra. 

<i) Ismail v. HaOz Boo (1906) 33 l.A. 86, 38 Cal 
773. 

<j) Ouran DUta v. Bam Ditta (1928) 55 l.A 235 
55 Cal, 914, 109 I.C. 723, ('28) A.PC. 172; 
ShambhunathShiypuriv. Pushkaranath 71 


l.A. 107. 

(i) Sretmanchunder v. Gofankhunder (1806) 11 
M.I.A. 28 ; Nau'ab Arimut v. Hurdtiaree 
Mul (1870) 13 M.I.A. 395 ; Faez Buksh v. 
Fukeeroodsn (1871) 14 M.I.A. 234 ; TJnxan 
Parshad v. Gandharp (1888) 15 Cal. 20, 
14 l.A. 127 ; Prince Suleiman v. I^aioab 
Mthndi (1898) 26 Cal. 473. 25 I. A. 15 ; 
Nirmal Chundsr v. Mahommsd (1890) 26 
Ca!. 11, 25 l.A, 225. 

G) JDalip Singh v. Chaudkrain (1608) 80 All. 
258, 35 l.A. 104; Silammov. Si<a7)fllhtTao 
(1938) Mad. 220, 176 I.C. 635, (’38) A.M. 8. 



BENAMI TRANSACTIONS. 


651 


of an ante-nuptial agreement, and that conae^piently it is not to be regarded as a benami 
transaction, the alleged ante-nuptial agreement, if oral, must be proved by the clearest 
and most satisfactory evidence of credible witnesses : it would be unwise to act upon 
oral evidence, unless there was contemporaneous written evidence to corroborate it [m). 

We now proceed to note the cases in which the Courts have refused to give effect to 
the real title. They form the subject-matter of the next four sections. 

606. Exception I: sale under a decree of Court or for arrears 
of revenue.— Where a property is sold under a decree of Court 
01 for arrears of revenue, and it is purchased benami and the 
benamidar is certified to be the purchaser, the real purchaser 
cannot maintain a suit against the benamidar to estabhsh his 
title to the property or to recover possession thereof from 
him. It is so provided by several statutes. 

Illustration. 

A obtains a decree against B for Bs. 5,000. In execution of the decree B’a property 
is sold, and it is purchased by 0 in D’a name. D then obtains a certificate of sale from 
the Court. C cannot sue D for a declaration that he was the real purchaser at the sale. 
The law is the same where property held by S is sold for arrears of revenue payable to 
Government, and it is bought by 0 in D’a name. 

See the Code of Civil Procedure, 1908, sec. 66 (n) ; the Bengal Land Revenue Sale 
Act, 1859, sec. 36 ; United Provinces Land Revenue Act, 1901, sec. 178 ; the Madras 
Revenue Recovery Act, 1864, sec. 38. 

The provisions of the above Acts do not affect the rights of third parties. Therefore 
in the case put above it is open to a creditor of C to sue C and D for a declaration that 
the property belongs to C, and that it is liable to satisfy his (G’s) creditor’s claims (o). 
Nor does the purchase made by a member of a joint Hindu family in his name, hut vrith 
funds belonging to the family, come within the meaning of those Acts. Therefore it is 
open to the other members of the family to maintain a suit against him for a declaration 
that the purchase was made on behalf of the family (p). 

607, Exception II: transfer by benamidar for value.- 
Where a benamidar sells, mortgages or otherwise transfers 
for value property held benami by him without the 
knowledge of the real owner {q), the real owner is not entitled 
to have the transfer set aside, unless the transferee had notice 
actual or constructive that the transferor was merely a 
benamidar (r). 

A buys certain property in the name of B. B then sella the property to and mis- 
appropriates the purchase-money. A sues B and C to have the sale set aside, alleging 
that he is the real owner of the property. The sale will not be set aside unless A shows 
that C has notice actual or constructive that B was not the real owner. 

(p) Bodh Singh v. Qunesh Chunder (1874) 12 
Bens. L. R. 317 [P.C.I. 

(g) Sarju Parskad v. Bir Bhaddur (1893) 20 I.A. 
108. 

(r) Batncoomar Koondoo v. ^tequeen (1873) 11 
Ben?. L.B. 46 I.A. Sup. Vol. 40 ; Mir Ma- 
homed Ma^uffer v. Kishori Mokun (1895) 
22C.il.9U9, 22 I.A. 129. 


(??i) Sara Lakshmiah Ghetty v. Koihandarama 
PUlai (1925) 52 I.A. 286, 48 Mtid. 605, 
88 I.C. 327, (’25) A. PC. 181. 

(n) See Oanga Sahai v. Kesri (1915) 42 I A. 

177, 182, 37 All. 545, 30 I.C. 205, ('15) 
A. PC. 81. 

(o) Eanhizak v. Monohur (1880) 12 Cal. 204; 

Saba Bibiv. Tiara Lai (ISO!) £1 Cal. 519 


Ss. 

605-607 



652 


HINDU LAW. 


Ss. 

607,608 


Con^trurtirje notice.^-lt Ih t)ie duty of a purchaser riot me^ei^ tu a?certam in wtose 
name the j^iiepcrtv stands, hut also lu asceitaiii wliu I’s hi actual po&.^-'rssiun of ibe pro- 
jA-rty at tile tiine of the sale to him. If he fails to do * 0 . and it turns out that the real 
oT«mer, and not the hK-namidar, was in popEcseion and rc‘''ejpt of the lents of the property, 
he will be fleemed to have constructive notice of the fact that the beiiiaiojdar was not 
the real owner. Thus if in the case put above, A was in piossesp^ion, and C onutted to 
enquire as tu who wa-s in possession, A would he entitled to have the sale set aside 

Nfjtc in thi.~ connection the p>rovi?ionG of 6. 41 of the Transfer of Property Act, 1SS2, 
which run a% folUiws : — “ Where, with the consent, express or implied, of the Jjcrsons 
interested in iro moveable propert 3 ’, a person is the ostensible owner of such property and 
transfers the same for consideration, the transfer shall not be voidable on the ground 
that the transferor was not authorized to make it ; provided that the transferee, after 
taking reasonable care to ascertain that the transferor had power to make the transfer, 
has acted in good faith.” 


608. Exception III ; fraud upon creditors.— Wliere property 
has been placed in a false name for the express purpose of 
defrauding creditors, and that purpose has actually been 
effected, the real owner is not entitled to recover back the 
property from the benamidar (t). But if the contemplated 
fraud is not effected, the real owner is entitled to get back 
the property from the benamidar {u). 

A, who is indebted to several persons, executes a deed purporting to be a conrej'ance 
of his property to B for Rs. 30,000. No purchase money is paid by B to .4, and the 
object of the transaction is to defraud A's creditors. After some time A compounds with 
his creditors and paj's them a composition of four annas in the rupee. A then sues 
B to recover back the property from B. Here the object of the fraud is effected, and 
the maxim applies, ' In pari delicto potior est coyiditio po^sedenii^t' that is to say “in 
equal fault the condition of the possessor is the more favourable.” Both A and B are 
equally guilty of a confederacy to defraud A s creditors; but the possession being in 
Bt the Court will not disturb him in his possession. In such a case the Court will say 
“ Let the estate lie where it falls.” But if A sues B to recover the property’ before the 
contemplated fraud is committed, the Court will not punish A mereW because he at one 
time intended to defraud his creditors, and it will direct B to deliver the property' to A. 
Where the purpose of the fraud is not effected, there is nothing to prevent the real owner 
from repudiating the entire transaction, removing all authoritv of his confederate to 
carry out the fraudulent scheme and recovering possession of the property* (r). 

Note in this connection the provisions of s. 84 of the Indian Ti:usts Act, 18S2, which 
run as follows: — “Where the owner of property transfers it to another for an illegal 
purpose and such purpose is not carried into execution . . . the transferee must 

hold the propertj^ for the benefit of the transferor.” [Note — To transfer propertj" for 
the purpose of defrauding creditors is to transfer it for an illegal purpose within the 
meaning of s. 84 of the Trust Act.] 


(«) Manchar)i v. Kongacoo (1869) 0 Bom. H.C. 
O.C. 69 ; Vyunkapacharya v. Yamanasami 
(1911) 36 Bom. HOQ, 10 I. C, 817 ; Inwin- 
bandi v. Kumiesicari il887) 14 Cal 109 
117, 13 I. A. 160, 165. 

(0 Natiab Singh v. Baljit Singh (1936) 58 411 
842, 162 I.C. 958, (’36) A.A. 401. 


(u) Petherpermalv Muntijndi (1908) 35 l.A. 08; 
Honupa v. yarsapa (1890) 23 Boin. 406, 
Paghavnlu v, Adinarayana (1000) 32 Mad. 
323, 2 I. C. 616 ; Jadu Sath v. liup Lai 
(1906) 33 Cal. 967 , Girdharlat v. ilani- 
itamintt (1014) 38 Bom. 10, 20 I. C. 50. 
(’14) A. B. 283. 

{*-) (1908) 35 I. A. 98, 103, supra. 



BENAMI TRANSACTIONS. 


653 


Collusive decree. — Where a collusive decree is obtained by a benamidar against the 
real owner with the object of defrauding the latter’s creditors, the decree is binding 
on the real owner even if no creditor has been defrauded. The reason is that where a 
person has suffered judgment to pass against him, the matter is then placed beyond his control. 
A buys a house in B's name with the object of protecting the property against the claims 
of his creditors, and occupies it as R’s tenant. Subsequently B in collusion with A 
sues A to recover possession of the house from him, and obtains a decree ex parte against 
A. A cannot impeach the decree on the ground that the object of the decree was to 
defraud his creditors. The result is that if B applies for execution of the decree the 
Court will order A to deliver jiosseasion of the property to B (ii?). But the decree' may 
be challenged by A's creditors (re). 

609. Exception IV; transaction against public policy.— 
Where a purchase of property, which if made by a person 
in his own name, would be illegal, as being opposed to public 
policy, is made by him in the name of another person, the 
real purchaser is not entitled to recover the property from the 
benamidar (y). 

In the cage cited above, the Kanungo of a district, who was prohibited on penalty 
of dismissal from oflBoe from acquiring property in his own district, purchased property 
in the name of bis brother’s son. After the Knnnngo’s death his heirs sued his brother’s 
son for recovery of the property. It was held that they were not entitled to recover 
the property. 

610. Decree against benamidar.— In the absence of any 
evidence to the contrary, it is to be presumed that a suit 
instituted by the benamidar has been instituted by him with 
the full authority of the real owner, and any decision come 
to in the suit is as much binding upon the real owner as if 
the suit had been brought by the real owner himself (z). 

IlUtslraiion. 

A buys a house benarai in B's name. C is in possession of the house at the date 
of purchase. B sues C to recover possession of the house, but the suit is dismissed. 
A alleging that he is the real owner, and that B was negligent in the conduct of the suit 
against C, sues C to recover possession. The Court finds that the suit by B against C 
was instituted with the knowledge of A. A is, therefore, bound by the decree in that 
suit as if he himself had instituted the suit, and the suit is barred as res judicata : Shamgara 
V. Rrishnan (1892) 15 Mad. 267. 

611. Right of benamidar to sue.— A benamidar fuUy 
represents the true owner, and so far as the outside world 
is concerned can maintain all suits whether arising out of 
contract or out of title to immoveable property (a). 


(uj) Cheninrappav. Puttappa {ISS7) 11 Bom. 708; 
Venkatramanna v. Viramina (1887) 10 
Mad. 17. 

(x) Oopi V. Markande (1870) 3 Bom. 30. 

{y) Sheo Narain v. Mata Prasad (1906) 27 All. 
73. 

(^) Oopi Nalh v. Bhugwat (1884) 10 Cal. 697, 
705 ; Skangara v. Krishnan (1892) 15 
Mad, 267 ; iiaroda Kanla v. Chunder 


Kanta (1902) 29 Cal. 082 ; Kaniz v. IFoli 
eMaA(1908) 30 All. 30 ; Ravji v. Mahadsv 
(1898) 22 Bom. 672. 

(a) Our Ifarayan v. Sheo Lai Singh (1919) 46 
I. A. 1, 46, Cal. 556, 40 I. C. 1, (*18) A. 
PC. 140 [benarai purchaael ; VoUkestoara 
V. ^rtnttasa (1019) 42 Mad. 348. 50 I.C. 
309. (’19) A.M. 524 [benaml mortgapp], 
(F.B.l. 


• Ss. 
608-611 



654 


HINDU LAW. 


S. 611 


iniiiny out oj contraH . — A l»en^nitdar can wainiu'm a £uk onj a entered 

mi<j inti." ri.airie. Thuj; if A lends money i> on a mori'^ge of propeny and tiie mort- 
gage is taken in C'h name, C may ‘'Tjc B on the mort gage in bis o^hti Dame 1.6 o ^Similarly 
if A lends rnonev to B on a promiissory note, Isiil the note i-. taken in C b naECie. C Is the 
projjer pemjn to sne upon it (c). A can sue B only if he enpures that B is prote^j'ted from 
fnnhei liability to C. Thia object in attained if C is made a party to the ETuii. apfreais in 
CV?ait and states that he docs not claim on the note Id). 

As regards auits for recovery of land upon title, there vra* a conSict of decisions. 
On the fine hand, it was held by the High Courts of Calcutta U) and Madias l that a 
benatnidar, as such, was not entitled to maintain a suit in his name for pos=ess^L^Ii of land 
of which he was merely a benamidar. On the other hand, it was held by she High Ci uns 
of Allahabad (g) and limnbay {h), that he was entitled to maintam such biiit. In a recent 
case the Judicial Committee held that a benamidar can sac in hia oicn nma to recov'^'r 
immoveable property vested in him as benamidar. He has the title and right of posses- 
sion which the real owner has given him, which is apparently enough to support the 
suit (i). 


Jllustration. 

A purchases a house benami in B'a name. At the date of the purchase C is in posses- 
sion of the house. B sues C for possession of tlie house. The defence i? that B is net 
the real owner. U, though a mere benamidar, is entitled to mainTain the suit. It Ls 
open to A to apply to be joined m the suit. It is also open to C to apply to hare A joined 
in the suit. 


(&) Btiola V. Ram Lall (1897) 24 Cal. 34 ; Sachu 
tananda v. Bahrain (1897) 24 Cal. 644 
[suit for foreclosure] ; Yad Ram v. Umrao 
Singh (1899) 21 AU. 380; Samta Prasad 
V. Indomati (1915) 37 All. 414, 417-418, 

29 I. C. 593, (’15) A, A. 264. 

(c) Ramanuja v. Sadagopa (1905) 28 Mad. 205 ; 
Subba Narayana v. Ramaswuini (1907) 

30 Mad. 88, onapp. from 28 5tad. 244. 

id) Sree Krishna Jana v. Seeta Kath Beta 
(1938) 1 Cal, 450, (’37; A. C. 753. 

(«) Bari Gobind v, Akoy Kumar (1889) 16 Cal. 
364 ; Issur Chandra v. Gopal Chandra 
(1898) 25 Cal. 98 ; Baroda Sundari v. 


Dino Bandhu (159Si 25 Cal. 874; Jl/y 
kendra Xath v. KaH Pia^had (TWiij 
30 Cal. 265; Atrabannua v. Sajatushh 
(1916) 43 Cal. 504, 31 I.C. 159. TlSj A.C. 
645 [suit for i*arlitiorkJ. 

if) Kathaperui/ial v. Th( S<cmary £«/ Siatt jor 

/Ndw(1007)30Mad.24j 

ig) Kand Kuhore v. Ahmad Ata 18 AIJ. 

09; (1S99) 21 All. 350, supra; Bachcha 
V. Gajadhar Lai [ 19CnS,i 2S All. 44. 

(?<) Ravji V. Alahadet (1893) 22 Bom, 672 ; 

Dagdu V. Balrant (1395) 22 Bom. S29. 
(0 Gut .Vflram V. Sheo Zai iSi«j?A(2919} 46 I. A. 
I, 46 Cal. 566, 49 1 C. 1, (’18) A-FC. 140, 



655 


CHAPTER XXX. 

JAIXS. 

1. Jain tenets and Jain law. 

612. Jains and their tenets. — ^The Jains seem to have 
originated in the sixth, or seventh century ; to have become 
conspicuous in the eight or ninth century ; got to the highest 
prosperity in the eleventh and declined after the twelfth. 
Their principal seats seem to have been m the southern parts 
of India, in Gujarat and the west of India, e.g., Mewar and 
Marwar. They seem never to have had much success in the 
provinces on the Ganges. They are still very numerous, 
especially in Gujarat, the Rajput country and Canara. 

The chief objects of their worship are the idols of a limited 
number of saints who have raised themselves by austerities to a 
superiority over the gods, and which exactly resemble those of 
Buddha in appearance and general character but are entirely 
distinct from them in their names and individual histories. As 
regards religion, they hold an intermediate place between the 
followers of Buddha and Brahma. They reject the scriptural 
character of the Vedas, and repudiate the Brahminical doctrines 
relatmg to obsequial ceremonies, the performance of shradli, and 
the offering of oblations for the salvation of the soul of the 
deceased. Amongst them there is no belief that a son, either 
by birth or adoption, confers sphitual benefit on the father. 
They also differ from the Brahminical Huidus in their conduct 
towards the dead, omitting all obsecjuies after the corpse is 
burnt or buried {j). There are, however, among them castes 
which still observe Hmdu customs, and perform the monthly, 
six-monthly and amiiversary ceremonies of the dead. In 
cases such as these the right to perform the ceremonies is 
governed by the ordinary Hindu law, that is to say, the son 
of the deceased has the preferential right to perform the 
ceremonies, and if there be no son (which term includes grand- 
son and great-grandson), it is the duty of the widow to get 
them performed provided the husband was divided at his 
death and the widow succeeds to his estate as his heir {h). 

The Jains agree with the Hindus in other points such as 
division into castes. This exists in full force in the south and 

O') SAaguandas V. (1873) 10 Bom. H. C. I (*) v. Z)aAi6ai(1905) 29 Bom. 316. 

241, 246*249. I 


S. 612 



656 


HINDU LAW. 


Ss. 

612, 613 


west of India, and can only be said to be dormant m the 
north-east. A Jain converted into orthodox faith returns to 
the caste from which he traced his first descent ( 1 ). Jains are 
mostly of Vaishya origin and they themselves have numerous 
divisions of their own of which the principal ones are (1) Framer, 
(2) Oswal, (3) Agarwal and (4) Khandewal (m). 

In Gettappa v. Eramma (n) where the i|uestion was whether a Jain widow was com- 
petent to adopt a son to her husband without hss authoritj' Kumaraswami Sastri, Ag. 
C.J., said ; “ Were the matters rest integra, I would be inclined to hold that modern 

research has shown that the Jains arc not Hindu dissenters but that Jainism has an origin 
and history long anterior to the Siuritis and commentaries which are recognised authorities 
on Hindu law and usage. In fact Maha Vcera. the last of the Jain Theerthankaras, 
was a contemporary of Buddha and died about 527 B.C. The Jain religion refers to a 
number of previous Theerthankaras and there can be little doubt that Jainism as a distinct 
religion was flourishing several centuries before Christ. In fact Jainism rejects the 
authority of the Vedas which form the bedrock of Hindui.sm and denies the efficacy of the 
various ceremonies which Hindus consider essential. So far as Jain law is concerned 
it has its own law-books of which Bhadrahahu Samhita is an important one. Vardha- 
imana Niti and Ashana Niti by the great Jain teacher Hemacliandra deal also with Jain 
law. No doubt, by long association with Hindus who form the bulk of the population. 
Jainism has assimilated several of the customs and ceremonial practices of the Hindus 
but this is no ground for applying the Hindu law as developed by Vijnaneshwara and 
other commentatois, several centurie.s after Jainism was a distinct and separate religion 
with its own religious ceremonial and legal systems, en bloc to Jains and throwing on 
them the onus of showing that they are not bound by the law as laid down by Jain law- 
givers. It seems to me that in considering questions of Jain law relating to adoption, 
succession and partition we have to see what the law as e.vpounded by Jam law-givers 
is and to throw the onus on those who assert that in anj' jiarticular matter the Jains 
have adopted Hindu law and custom and have not followed the law as haid down by their 
own law-givers.” See, however, sec. 013. 

613. Jain Law. — The ordinary Hindu law is to be applied 
to Jains, in the absence of proof of special customs and usages 
varying that law. Those customs and usages must be proved 
by evidence, as other special customs and usages vary mg the 
general law should be proved (ss. 16-20), and in the absence 
of proof the ordinary law must prevail (o). There is, however, 
nothing to limit the scope of the inquiry to the particular 
locality in which the persons setting up the custom reside. 
Judicial decisions recognising the existence of a disputed 
custom among the Jains of one place are relevant as evidence 
of the existence of the same custom amongst the Jams of 

(0 Ani’Kihniw f/otinii 23 Bom. 2j7. 

im) Anibabai v, Ooi'ind, supra. 

(n) (1927) 50 SEikI. 228, 229-230, 90 I.C. 50S. 

('27) A. SI. 228. 

(o) Cholay Lull v. t'himno Lull (1879) 6 I.A, 

15, 22 "W 11. 490 , Slico Sinyh Ittlx v. 

Mudsumui Dufpfio 11878) 5 I.A. 87, 


1 All. b88 ; Lala Jivp C/iand v. 

Parshad (1010) 37 I.A. 93, 103-104, 
32 All. 247, 0 I.C Bulakanw Hatan 
Lai (1928) 26 All. 1<.J. 1100, 110 I.C. 
546, ('28) A.A. 056 (1927) 50 Slad. 228, 
99 I.C 503, ('27) A. SI. 228, supra, Jai- 
ivanti V. Annndi Deii (1938) All. 196, 
173 I.C- 356- A A 02 



JAINS. 


m7 

anotter place, unless it is shomi that the customs are different ; 
and oral evidence of the same kind is equally admissilde (p). 
AThere, however, a custom is negatived by a judicial decision 
in one place, e.p., Sladras, the fact that among Jains in the 
other Presidencies such a custom has been upheld bv Courts 
does not warrant a general presumption of the prevalence 
of the custom in the iladras Presidency (y). 

614. Jain law in Bombay Presidency. — In Bhcifp.mpfpM 
V. Rajmcd (/■}. IVestropp, C. J., .said : “ Hitherto, so far as we 

can di.scover, none but ordinary Hindu law bas been ever 
administered either in this Island or in this Pre.sideriev to 
persons of the Jain sect.” 


2. Succession. 


615. I^w of succession. — Until a special c?x 5 tom to 
the contrary is established, the ordinary' Hindu law goTem« 
succession amongst the Jains. The ordinary Hindu law fe 
that of the three superior castes (s). 


616. Interest taken by Jain widow in her husband's esfcato, — 
In the absence of a custom to the contrary, a JafA widfj'W' 
takes a limited interest in her hiishandcs estate .sirail!a.ir tike' 
■■ widow's estate.” A custom, however, to the cifjoiiiri'aiay Ms 
beeD proved in several ca.ses, and it has beexi held in eais-o:;. iimm 
ileemt ft). Saharanpur (u). and ,4xrah in the district rf SMlka-- 
b-ad ('.i'}, that amongst A<iarwala Jain.® the widow teltee; 
absolute estate in the &f;lf-aequired prof>ertv' of het' 
ani irLa;t she has full povo-r of alienation bu respistt of .'jiMlfei 
pFopertv. But there is no custom which efi'trtJ'^s- i>n! ito' sm 
aibaojlute estate in ancestral property left by hei; 

In the latter case .she take'^ only a widow -eetete iv:)l 


In Bombay it has Imeti luM that there fso 
the Da.sM ShriiTEali HfiWfttarrs'oar Jai.o.s of KMjndks-fti iiiiafev 
whi:h a wifiovT takes an ab-solote inte.^eat im lirrir 


J'toiJ'. .I'r 'Wf 

' £' I i' '' /ffojjwato '' l Vji- j H--*', 

Uf !■ i'; i”j A If SB'' 

l"'' Tii i-i-V.liii rf (■ AH A',iv A/a-'/oU • 

JlSrllyhld.rpjaHftli.' '' f •'Ijy I Z-i ^ _ 

(t#)) \» C-. iw,-;. .'i -t'.vii A'* 

ilrtif,, .1 />,’/< ^ J»S>. 

f ( T 15 . ’Vhrt lb 'K iHftti 

Uh»!Vj 1 1 


d Dv>(i tiUkilo i 

f C A' '.sT, IL 

'v| ''A'./wIjJ'i*. Sfi'th C'to-iil- Jjk 

All Vy'i 

'r., ,'fcyOU, A 7 ' r'-tl 'UT- 'Scu-r-T- 

tgf, ■> i siS' 

t i!'. ; i'. :>■; i ^ iW5;. 

-■I.v..*. . kCW: .JJ-AlU- 

i J 1:it 


. Sf 

mils 



658 


HINDU LAW. 


Ss. 

616-620 


estate or a mother in her son’s estate (a;). These females 
in that community take only a “ woman’s estate.” 

616A. Succession to stridhana. — According to the custom ' 
and usages of the Agarwala community, the son is entitled 
to succeed to his mother’s stridhana {y). 

3. Adoption. 

617. Adoption secular in character.^ — The Agarwala Jams 
do not beheve that a son whether by birth or adoption, 
confers any spiritual benefit on the father ; the adoption, 
therefore, is entirely secular in character [z). 

618. Adoption by widow. — Amongst the Agarwala 
Banias of the Sarogi sect a sonless widow may by custom 
adopt without the permission of her husband or the consent 
of her husband’s sapindas (a). If the family is joint, he becomes 
a coparcener (s.472) (6). There is no such custom in the 
JIadras Presidency (c). A Jain widow in Bombay can adopt 
without the husband’s authority (d). 

619. Second adoption by widow. — As imder the Hindu 
law, so among Jains, a Jain \vidow has power after the death of 
an adopted son to make a second adoption (e). 

620. Age of boy to be adopted: adoption of married man. — 
The Agarwala Jams belong to the twice-born classes, 
and by the general Hindu law applicable thereto a boy 
caimot be adopted after his marriage, except in the case of 
persons governed by special custom duly proved. In a 
case from Saharanpur it was held by the Courts in India, 
that according to the custom of which evidence was given 
in the case there was no restriction of age or marriage, and 
that a married man could be adopted. This decision was 
confirmed by the Privy Council on appeal, but their Lordships 
observed that having regard to the fact that the custom alleged 


(if) Bhikabai v, Manilal (1930j 5-4 Bom. 780, 
128I.C. 628, (’30)A.B. 517. 

(y) Hanram v, iXadan CopnJ (1928) 33 CAV N. 

493, 114 I C. 505, ('29) A.PC 77. <*) 

(z) Dhanraj v. .Soni Bai (1925) 52 1 A. 231, /-•, 

242, 52 Cal. 482, 87 I C. 357, ('25) A.PC. ' ^ 
118 la case from Amraoti in the C.P.). 

{a) Sheo Singh Eai v Miismmut Dakho (1878) 

5 I. A. 87, 1 All. 688 , A/aneA: Chand v. (d) 
Jagat Settani (1890) 17 Cal. 518; Lakhmi 
Chand v. Gatto Bai (1886) 8 AM, 319; 
Eamabh Pershad v. Mandil Pass (1900) 

27 Cal. 397 ; Manohar Lai v, Banam Das 
(1907) 29 All. 495 , Asharfi v. Rup Chand (e) 


(1908) 30 All. 197 ; Banarii Das v. Sunwt 
■ Prasad (1936) 58 All. 1019, 164 I. C. 1047, 
(*36) A. A. 641. 

Swidar Lai v. Baldeo Singh (1933) 14 Lah. 

78, 138 I.C. 151, ('32) A.L. 426. 

Peria Ammam v. Krishna Samt (1803) 1J3 
Mad. 182 : Getiappa v. hJramwa (1927) 
50 Mad. 228, 99 I.C. 503, (’27) A.M. 
228. 

Yaynashetli Bluiushetti v. Ashok Bhau Shettx 
(1940) Bom. 819, 191 I.C. 488, (’40) A B. 
391; Sugancliand Bhikamchand v. Mangi- 
bai Gulabchand (1942) Bom. 467, 201 I.C. 
759, ('42) A.B. 185. 

(1886) 8 All. 319, supra. 



JAINS. 


669 


was very wide and the evidence was limited to a comparatively 
small number of centres of Jain population, the case should 
not be taken as a satisfactory precedent if in any future 
instance further evidence regarding the alleged custom should 
be forthcoming (/). In a later case {g), it was held by the 
Prh^ Councd that in the Sitambari sect of Jains the adopted 
son may at the time of his adoption be a grown up and married 
man. The High Court of Allahabad has also held that, 
among Jains a married man may lawfully be adopted [h). In 
Dhanraj v. Sonibai (i) the parties belonged to the caste or sect 
of Agarwalas, who, as their Lordships of the Privy Council 
observed, generally adhere to Jainism and repudiate the Brah- 
minical doctrines as to obsequial ceremonies, shraddljas and 
offerhigs of oblations for the salvation of the soul of the decea.s- 
ed, and do not beheve that a son either by biidh or by adoption 
confers spiritual benefit on the father. Their Lordships further 
observed that among these people the qualifying age of adop* 
tion extends to the thirty-second year. 


621. Adoption of oiphan, — Under the Hindu law it h 
essential to the validity of an adoption that the child fihouhl 
be “ gii'en ” to the adopter by the father, or if he be da&d, 
by the mother. No other person has this right, nor can such 
right be delegated to any other person. Con»equently ,a boy 
who has lost both his parents cannot be adopted. Tkk rule 
applies also to the Agarwala Banias of the Sarogi sect (j|- 

Tn a Bombay case where the question arose whether 
there was a custom of adopting an orphan among Jains in 
"Western India, it was held that tlie evidence given in tfee fAm 
was sufficient as between the partie.s to the suit and thoifse 
claiming through and under them to entitle the Court to 
that there was such a custom {k). 

622. Adoption of daughter’s son. — A daughter's may 
be adopted amongst the Agarwala Banias of the Barogi geet' (1), 

623. Adoption of sister’s son. - Under Jain law the adnjrtMfi 
of a sister's son i.s valid (m). 


(f/ /:vr> fJhand (JifiOf \ 

^7 L i- r/'s, 32 AiL 247, (/ THL 272, 

273 1 ICC ], 01 1/J. , U21 > A .Pf 77, 

(A) Mmt/jhiixr Lai v, Uas AH, 

ii'] /fvnv fi'ii i/2 i.A 

292, 72 i C, ;tV7, 

Hrs I a riL-e Afrifx'/U Ih C JCj, 


r/i 23S, VI .uif. h' n t'.v 

V, iv h'/Ui, it 

ftl l,f, i't'/, \ y- H 7 , 

/f) AhrO flftl V ,\f iSit'l m>jt ^ 

fi f A f:7, 1 Afl 

f,„j //fte-ftn V JVfi'/d M'd f } AlJ -'M. 


St. 

620.623 



660 


HINDU LAW. 


Ss> 

624. 625 


624. Ceremonies incidental to adoption. — Among Agarwala 
Jains the only ceremony necessary for an adoption is the giving 
and receiving of the hoy in adoption. It is not necessary that 
the boy should be placed on the lap of the widow (h). 

Among Agarwala Banias of the Sarogi sect the practice 
has been at the time of adoption to tie a turban round the 
head of the boy who is being adopted in the presence of the 
principal men of the community (the punchas) and give them 
a feast (o). 

Amongst the Agarwala Banias of Zira (in the Punjab), 
the general rules of Hindu law as to adoption do not apply, 
and by the custom applicable to them an unequivocal 
declaration by the adopted father that a boy has been adopted 
and the subsequent treatment of that boy as the adopted 
son is sufficient to constitute a valid adoption (p). 


625. Share of adopted son. — As amongst orthodox Hindus 
so among Jains an adopted son is entitled in the Bombay 
Presidency to one-fourth of the estate of the adoptive father 
if a natural son is born after the adoption (g). 


(n) (1920) 25 C.W.N. 273, 61 I.C. 481, (’21) 

A.PC. 77. supra; (1925) 52 I.A. 231, 52 
Cal, 482, 87 I.C. 357, (*25) A.PC. 118, 
supra. 

(o) Dhanraj v. Soni Bai (1925) 52 I.A. 231, 52 


Cal. 482, 87 I.C. 357, (’25) A.PC. 118. 

(») Chiman Lai v. Uari Chand (1913) 40 I A. 

15«, 40 Cal. 870, 10 I.C. 069. 

(q) Ilukhab V. Chumlal (1892) 16 Eom. 347. 




CHAPTER XXXI. 
SUDRAS. 


661 


626. Who are Sudras. — The Hindus are divided into two 
main divisions, namely, (1) the regenerate castes, and (2) the 
Sudras. Legally Sudra merely denotes one of the two main 
genera among Hindus. In Suhmo v. Radha (r), Madgavkar, J., 
observed as follows : “ The Sanskrit texts which lay down 

certain functions and duties of the four main castes in Hindu 
society as it might have existed many centuries ago, are not 
apphcable to the present when function and legal caste do 
not coincide .... The origin of caste is likewise not very relevant. 
It is generally agreed that castes arose, partly from the 
division of classes and functions and partly from the contest 
between the fairer Aryan with the darker Dra vidian, as is 
sufficiently proved by the Sanskrit word varna or colour of 
caste. But colour, no more than function, is a test of caste, 
the Sudra of the North -being often fairer than the Brahmin 
of the South. The tendency of occupation to be hereditary 
in a society which ceased to progress and the crystallization 
of the idea of caste and its abnormal growth over a large area 
such as India, are matters of sociological interest but throw 
little legal light on the question in issue. Even at the present 
day, the principle that caste springs from birth and cannot be 
changed is irot unchallenged by ethnologii5ts, who point out 
that miscegenation and the absorption of the aboriginal in- 
habitants into Hinduism hav^e existed for centuries and have not 
stopped. This process has also been recognised by the Courts. 
It suffices to refer to recent cases such as Sahdeo Naram Deo 
V. Kusum Kumari (s) where such a process of absorption 
including the custom of adoption barely a century old was 
recognised by their Lordships of the Privy Council.” 


In a Calcutta case (t), the question was whether Kayesthas 
were of the Sudra caste and the Court applied four tests, 
(1) wear ing the sacred thread ; (2) abilik^ to perform the homa ; 
(3) the rule as to the period of impurity ; and (4) the rule as to 
the incompetence of illegitimate sons to inheritance. By 
the apphcation of these tests the Courts came to the conclusion 


(r) (1928) 52 Bom. 497, 501, (’28) A. B. 295. 

(«) (1023) 50 I.A. 58, 2 Put. 230, 71 l.C. 769, 
(-23) A.PC. 21. 


(0 Eairoonvir Lall V. i)yal (18S4) 10 

Cal. 088, 006. 


S. 626 



HINDU LAW. 


Ss. that the Kayesthas were Hindus of the Sudra caste. In a 

626,627 Patna case {u). on the other hand, it was held that the mere 

non-observance of the orthodox practices could not take 
away the rights of a Kayestha in matters of inheritance, mar- 
riage and adoption and that the Knyesthas of Bihar belonged 
to the twice-born classes. 

In Maharaja of Kolhapur v. Sundaram Ayyar (y) the 
Court accepted the principle that the consciousness of a commu- 
nity is a good test of caste. This accords with the view of 
Dr. Sarvadhikari (tv) who says that “ the only safe rule to 
follow in all cases where the determination of the caste of a 
person is in question, is to ascertain the customs and usages 
by which the social conduct of the person given is regulated. 
The remarriage of vhdows, and equal rights and privileges of 
legitimate and illegitimate sons, and similar customs and usages, 
are marks by which a Sudra can be distinguished.” In the 
Bombay case referred to above, Madgavker, J., said : “ The 

popular view lays dowm three tests: (1) the consciousness of 
the caste, (2) its customs and (3) the acceptance of that 
consciousness by the other castes.” After referring to the 
above tests the learned Judge said as follows : ” Speaking for 

myself, I confess, therefore, that I am unable to discover 
any authoritative prmciple or test or text which could be 
apphed to decide the present question. The difficulty is so 
great as perhaps to Justify a doubt if the ordmary Courts 
of law are fitted to decide such cpiestions, imless the Legislature 
is prepared to lay down general rules for apphcation in cases 
such as the present. But faihng such a principle or rule, the 
Courts, it seems to me, have at present necessarily to fall 
back upon the only possible test remaining, namely, the 
test of custom — a test not inconsistent either with the spirit 
of Hindu Jurisprudence, which itself lays down that custom 
is even more powerful than the Shastras or with the view 
of the British Courts on important matters such as succession, 
primogeniture and impartibihty ” (x). 


627. Lingayats. — The Luigayats wdio are originally Hindus 
are a body of dissenters and the fomider of their religion 
was one Basava who was born about 1100 A.D. They 


(w) Ishwari Prasad v. Ilai Hari Prasad (1927) 
6 Pat. 506, 106 I.C. 020, (*27) A.P. 145 
(e) (1925) 48 Mad. 1, 52, 93 1. C. 705, (*25) 
A.M. 497. 


(w) Tagore Lavr Lectures (18S01, 2nd Ed.. p.830. 
{x) Sulrao v. iladAa (192S) 52 Bom. 497, 502, 
1 113 I. C. 497, (’28) A.B. 295. 



SUDRAS. 


663 


acknowledge only one God, Siva, and reject the other two per- 
sons of the Hindu Triad. They revere the Vedas, but disregard 
the later connnentaries on which the Brahmans rely. Their 
faith purports to be the primitive Hindu faith, cleared of all 
priestly mysticisms. They deny the supremacy of Brahmans, 
and pretend to be free from caste distinctions, though at the 
present day caste is in fact observed amongst them. They 
declare that there is no need for sacrifices, penances, pilgrimages 
or fasts. The cardhial principle of the faith is an unquestioning 
belief in the efficacy of the Lingam, the Image which has 
always been regarded as symbolical of the God Siva. Mysore, 
the Southern Mahratta coimtry, and the Bellary District contain 
most of these Lingayats. Though the sacred thread is not 
worn by the Lmgayats, a ceremony called Deeksha ought 
to be performed about their eighth year but as in the case of 
Upanayanam it is often performed much later. The sacred 
Mantra is whispered in the ear by their Guru and this ceremony 
corresponds to Upanayanam among the Brahmans. 

In the case of Jains it is imdoubted law that in the absence 
of any custom to the contrary which has to be set up and proved, 
they are subject to the rules of Hindu law. The Jaius do not 
worship Siva nor do they recognise the authority of the Vedas. 
But in the case of Lingayats whose only God is Siva and who 
acknowledge the authority of the Vedas, they are all the more 
bound by Hindu law except in so far as it is modified by 
custom (y). 


In the Madras case cited above the Lmgayats of Madras 
were apparently not regarded as Sudras. In Bombay, however, 
it has been held that the Lingayats of the Bombay Presidency 
are Sudras, and not Vaishyas (z). 


628. Kayesthas. — The Kayesthas of Bengal are Sudras (a) . 
As regards Kayesthas of Bihar it has been held that 
they belong to the three regenerate classes, and are not 
Sudras {b). 


(y) Somasekhara v. Mahadeva (1930) 53 Mad. 

297, 303*305, 130 I.C. 744, (’30) A. M. 496 

(z) Gopal V. Uanmant (1879) 3 Bom. 273; 

Fakxrgauda v. Gangi (1898) 22 Bom. 277. 
(o) Asita Mohan v. Nirode Mohan (1910) 20 
C. W. N. 901, 904, 35 I. C. 127, (’17) A.C. 
292 ; Biswanaih v. Shorashibala (1921) 48 


Cal. 926, 934, 60 I. C. 590, (’21) A. C. 48; 
Bhola Nalh v. Emperor (1924) 51 Cal. 488, 
492-493 81 I. C. 709, (’24) A. C. 016. 

(6) Ishimri Prasad v. Rai TJari Prasad (1926) 
f> Pat, 506, 106 I. C. 620, (’27) A. P. 145 ; 
Raiendra v. Gopal (1928) 7 Pat. 246, 
108 I. C. 545, (’29) A. P. 61. 


Ss. 

627,628 



664 


HINDU LAW. 


629. Rajas of Tanjore.— The Tanjore branch of the Ma- 
rathas descended from Sivaji are Sndras, and not Kshatriyas(c). 

630. Marathas of Bombay Presidency.^ — There are three 
classes among the Marathas in the Bombay Presidency, 
namely, (1) the five famibes, (2) the ninety-six families, and 
(3) the rest. Of these first two classes are Kshatriyas ; the 
last class consists of Sudnas {d). 

631. Converts to Hinduism.— Converts to Hinduism are 
regarded as Sudras {e). 

632. Whether a Sudra can be a Sanyasi. — A. Sudra cannot 
enter the order of Yati or Sanyasi (ascetic). Hence a Sudra, 
though he has renoimced the world and purports to lead the 
life of an ascetic, is entitled to inherit to his relations, and 
on his death his estate will pass to his natural (as distin- 
guished from religious) heirs (/). 

Ceremonies incidental to adoj>tion. 

633. Ceremonies incidental to adoption. — (1) Adoption 
amongst Sudras is a purely secular transaction, and no cere- 
monies are necessary in addition to the giving and taking 
■the boy in adoption. The giving and taking ceremony, how- 
ever, is absolutely necessary for the validity of an adoption [g). 
(2) Amongst Maratha Brahmins in Bombay, where the boy 
to be adopted is of the same gotra as the adoptive father, the 
performance of the ceremony of datta homam is not essential 
to the validity of an adoption [li). 

634. Who may adopt;— 

(1) Adoption by leper. — Ho ceremonies being necessary 
for an adoption among Sudras, even a leper may adopt {i). 

(2) Adoption by ivoman under pollution and adoption 
by uncMste woman. — No ceremonies being necessary for an 
adoption among Sudras, a woman under pollution ma}' 
adopt ij). So also an unchaste woman {k). 


{c) Maharaia oj Kolhapur v. Hundaram (192:i) 
48 Mad. 1, 93 I. C. 705, (’25) A. M. 497. 
{d) Subrao V. Radha (1028) 52 Bom, 497 1J3 
I. C. 497, (’28) A. B. 295. 

{e) Mvthummi v. 3IasiIa>rMini (1910) 33 Mad 
342, 0 I. C. 43. 

if) Dharrnapuram v. Vxravandiyovi (1899) 22 
3Iad. 302 ; Jlari^h Chandra v. AUr iSIaha- 
(1913) 40 Cal. 545, 18 I. C. 474: 
Soma^undaram v, VaHhilinga (1917)40 
Mad. 846. 41 1. C. .540. (’1«) A. M. 794. 

(j) Indromoni \ . liehari Lai 7 1. A. 24, 


5 Cal. 770 ; Mnhashoi/a v. Srimati KrUhna 
(1880) 7 I. A. 250, 0 Cal. 381 : JLfoAon 

V, Xirode Mohan (1910) 20 C. W. N. 901, 
35 1. C. 127, (’17) A. C. 292 ; Bhala v. 
Pfirhhu nari (187ft) 2 Born. 07. 

(h) Bal Cangadhar Tihik v. Sruiivas (1916) 42 
I. X 135. 39 Bom. 441, 29 I. C. 039. 
(’15) A. I'C. 7. 

(t) Sukumari v. Ananta (1901) 28 Cal. 168. 

(j) Thungathani v. Bamu (I8tS2) 5 3Iad. S8D. 

(k) Basiant v. Mallappa (1921) 15 Bom. 459, 55 

I. C. 800, (’21) A. B. 301. 



SUDEAS. 


665 


635. Who may be adopted 

(1) Adoption of daughter’s son, sister’s son, sister’s 
grandson, and mother’s sister’s son . — Among Sudras the adoption 
of a daughter’s son, sister’s son (1), sister’s grandson (m), and 
mother’s sister’s son (n), is valid. 

(2) Adoption of boy of different Gotra. — There is nothing 
to prevent a Sudra from adopting a boy from a different 
gotra (o). 

(3) Adoption of married man . — In 'Western India where 
the Mayukha is the prevailing authority, a Sudra may be 
adopted even after his marriage {p). 

In other parts of British India, however, where the 
authority of the Dattaka Chandrika is supreme, such an 
adoption is invalid {q). 

636. Second adoption during lifetime of first adopted son — 
A second adoption of a son, the first adopted sou being alive, 
and retaining the character of a son, is illegal (r). 

637. Son born after adoption. — In the case of Sudras m 
the Madras Presidency (s) and Bengal [t), an adopted son 
on partition of the family property shares equally with a son 
or sons of the adoptive father born after the adoption. 


Marriage. 

638. Marriage as a saraskara. — Among Sudras marriage is 
as much a samslcara as among the twice-born classes. 
Therefore, a debt contracted for the marriage of a member 
of a joint Sudra family is a debt contracted for a family 
purpose and is binding on the joint family property (w). 

In Hindu law marriage is regarded as one of the ten samskaras or sacraments 
necessary for regeneration of a man of the twice-born classes and the only sacrament 
for women and Sudras. 


(1) liaj Iioonuir V. UisscAsur (1884) 10 Oil OSS, 
Lakshmappa v. liar.iaia (1876) 12 Bom. 
H. C. 304 ; Kahandas v. Jivan (1923) 
25 Bom. L. II. 510, 73 I. C. 1023, (’23) 
A. 13. 427 : Subrao v. Badha (1928) 52 
Bom. 497, 113 I. C. 497, (’28) A. B. 205. 
(tn) Maharaja of Kolhapur v. Sundaram (1925) 
48 Mad. 1, 93 I. 0. 705, (’25) A. M. 497. 
(n) Chiuna v. Pcddu (1876) 1 Mad. 02. 

(o) Rungama v. Atchama (1846) 4 M. I. A. 1. 

ip) Naihaji V. llari (1871) 8 Bom. H. C. A. C. 

67 ; (1875) 12 Bom. H. 0. 364, supra. 

iq) Litigayya Chetly v. Chengalnmmal (1925) 48 


Mad. 407, 89 I. C. 923, (’25) A. M. 272 , 
SovMsekhara v. Mahadeta (1930) .53 Mad 
297, 133 I. C. 744, (’30) A. M. 496; 
Damodarii v. Collector of Banda (1910) 
7 All. L.'J. 927, 7 I. C. 418. 

(r) (1846) 4 M. I. A. 1, s«;)ra. 

(s) Perra^u v. Subbarai/adn (1921) 4S I. A. 280, 

44 Mad. 650, 61 1. C. 6D0. (’22) A.PC. 71 
(i) Mohon Y. Strode Mohon (191 6) 20 

C. W. N, 901. 35 I. C. 127, (’17) A.C. 292. 
(m) Sundrabai v Shhnarayana ^908) 32 Bom. 
81; Kamcsu'ara v. Vecracharlu (1911) 34 
Mad. 422, 8 I. C. 195. 


* Ss, 
635-638 



666 


HINDU LAW. 


Ss. ■ 
638,639 


The daughter of a Sudra ia entitled to be paid her marriage expenses ont of the 
father’s estate in the hands of her step-mother in the same way as she ia entitled to 
be paid her maintenance ; thi"^ rule applies as much to Sudras as to the twice-born 
classes (r). 

639, Identity of caste. — It is a general principle of the 
Hindu law that a marriage between persons who do not 
belong to the same caste is invabd, unless it is sanctioned 
by custom. Therefore a marriage between a Thakur (Sudra) 
and a Brahmin woman is invalid (tc). So also a marriage 
between a Sudra and a Vaishya woman. The offspring of 
such marriages are illegitimate {x). Marriages, however, 
between a Vaishya and a Kayestha (Sudra) woman are recog- 
nised by local custom in the District of Tipperah and are 
therefore valid {y). 

But a marriage between persons belonging to different 
sub-divisions of the same caste is valid. It has accordingly 
been beld that the foUoving marriages are vabd, they being 
marriages between persons belonging to different sub-divisions 
of the Sudra caste ; — 

(a) A marriage between a Zamindar of Malava caste 

with a woman of the Vellala class of Sudras (z). 

(b) A marriage between a Kayestha of Bengal and a 

Dom woman {a). 

(c) A marriage between a Kayestha of Bengal and a 

Tanti woman (6). 

(d) A marriage bet'ween a Sudra and a Christian woman 

converted to Hinduism (c). 

In the last mentioned case {d} it was held that such marriages were valid as they 
were common among and recognised as valid by the custom of the caste to which the 
man belonged. At the same time the opinion was expressed that such marriages were 
valid even under the Hindu law. 

L*ngayats of Bombay Presidency . — According to the Lingayat religion, as well as 
according to Hindu law, marriages between members of different classes of Lingayats 
are not illegal (e). 


(c) j&apayyo v. liukhamrrvx <1909) 19 Mail. L. J 
666, 4 L C. 1069. 

(to) Sespurx v, Dwarka Prasad (1912) 10 All 

L. J. 181, 16 I. C. 222. 

(z) Aftmni Lai v. Skiama (1926) 48 All. 070,- 97 
I.C. 347, (’26) A. A. 656. 

(y) Ram Lai v. Akhoy Charan (1903) 7 C. IV. N 

619. 

(z) Ramamani Arnmal v. Knlanthai (1871) 14 

M. I A. 346; Inderum v. Ramasuamy 


(1869) 13 M.I.A. 141 ; Upovia v. Bholaram 
(1888) 15 Cal. 708. 

(а) Wiola Nath v. Emyeror (1924) 51 Cal. 488, 

81 1. C. 700, (’24) A. C. 016. 

(б) Biswanath Das v. Shorashibala (1921) 48 Cal. 

920, 00 I. C. 590, (‘21) A. C. 48. 

(c) Muthusami v. Masilamani (1910) 33 Mad. 

342, 6 I. C. 42. 

(d) (1010) 33 Mad. 342, 5 I. C. 42, supra. 

(e) Fakiryauda v . Oanffi (1898) 22 Bom. 277. 



SUDRAS. 


667 


640, Anuloma marriage. — Under the Hindu law as 
administered in the Bombay Presidency, a marriage between a 
Vaishya male and a Sudra female is an anuloma marriage 
and is valid (/). So also the marriage of a Brahman male 
with.a Sudra female {g). 

641. Presumption as to form of marriage. — It has beenheld 
in Bombay that even among Sudras the law will presume 
the marriage to have been according to the approved form if 
the parties belonged to a respectable family {h). 

Inheritance and Partition. 


642. Inheritance and partition. — The texts of the Mitak- 
shara bearing on the subject are contained in chap. I, sec. 12, 
paras. 1 and 2 

“1. The author next delivers a special rule concerning 
the partition of a Sudra’s goods. Even a son begotten 
by a Sudra on a female slave, may take a share by the 
father’s choice. But if the father be dead, the brethren 
should make him partaker of the moiety of a share ; 
and one, who has no brothers, may inherit the whole 
property, in default of daughter’s sons ” (i). 

“ The son, begotten by a Sudra on a female slave, 
obtains a share by the father’s choice, or at his pleasure. 
But, after (the demise of) the father, if there be son 
of a wedded wife, let these brothers allow the son of the 
female slave to participate for half a share.: that is, let 
them give him (as much as is the amount of one brother’s) 
allotment. However, should there be no sons of a wedded 
wife, the son of the female slave takes the whole estate, 
provided there be no daughters of a wife nor sons of daugh- 
ters. But if, there be such, the son of the female slave 
participates for half a share only.” 

The whole law on the subject of inheritance is dealt with 
in sec. 43, Nos. 1- — 3, note (4), and of partition in sec. 312. 


Maintenance. 

643. Maintenance of illegitimate sons. — ^The whole law on 
the subject of maintenance of the illegitimate sons of a Sudra 
by a dasi is dealt with in sec. 551 above. 


(/) Bai Qulah v Jiu'anlal (1022) 46 Bom. 871, 
65 I. C. 602, (’22) A. B 32. 
ig) Natha v. Mehta Choiala! (1031) 55 Bora. 1, 
130 I. C. 17, (’81) A B. 89. 


(h) Jagannath v. yarayan (1910) 34 Bom. 553, 

7 I, C. 459. 

(i) Yajnyavalkya, 2 ; 134-135. 


Ss. 

640 .^ 



668 


APPENDIX I. 


THE HINDU TRANSFERS AND BEQUESTS ACT, 19U. 

BEING 

MADRAS ACT NO. I OF IQU- 
[Came into force on the \Mh February, 1914.] 

An Act to declare the rights of Hindus 0 make transfers and 

bequests in favour of unborn persons [iyi the Mufassal 
of Madras\ 

Whereas it is expedient to declare the rights of persons 
governed by the Hindu law to make transfers 
preumbie. and bcqucsts in favour of unborn persons ; 

It is hereby enacted as follows : — 

Thvs, A.-i't he, csJied “The 

Short title. Hindu Transfers and Bequests Act, 1914,” 

2. (i) This Act shall apply to all transfers inter vivos 

and wills made by persons governed by the 
Appucation and extent. Huidu law who are domiciled within the 
limits of the Presidency of Madras. 

(2) In the case of transfers inter vivos or wills executed 
before the date of this Act the provisions of this Act shall 
apply to such of the dispositions thereby made as are intended 
to come into operation at a time which is subsecpient to such 
date : Provided that nothing contained in this section shall 
affect bo7ia fide transferees for valuable consideration in whom 
the right to any property has vested prior to the date of the 
Act. 

Explanation . — Hindus governed by the Marumakkattayam 
or the Aliyasantana law shall be deemed to be persons 
governed by the Hindu law for the purposes of this Act. 

3. Subject to the limitations and provisions specified 
in this Act, no disposition of property by a Hindu, whether 
by transfer inter vivos or by will, shall be invahd by reason 
only that any person for whose benefit it niay have been made 
was not born at the date of such disposition. 



TRANSFERS AND BEQUESTS ACT. 


669 


4. The limitations and provisions referred to in section 
3 shall be the following, namely : — 

■{a) in respect of dispositions by transfers inter vivos, 
those contained in Chapter II of the Transfer of 
Property Act, 1882, and 

(6) in respect of disposition by will, those contained 
in sections 113, 114, 115 and 116 of the Indian 
Succession Act, 1925. 


Sec 3 . 3 and 4 were substituted for the original secs. 3, 4 and 5, by the Transfer of 
Property (Amendment) Supplementary Act 21 of 1929, sec. 11, which came into force 
on the 1st April 1930. The original secs. 3, 4 and 5 were as follows : — 


3. A transfer inter vivos or disposition by will of any property shall not be invalid 

by reason only that the transferee or legatee is an unborn 

Transfers and bequests in person at the date of the transfer or the death of the testator, 
favour of unborn persona. j,, 41 ,^ 

4. No transfer of property can operate to create an interest which is to take effect 

after the lifetime of one or more persons living at the date of 
Eule against perpetuity the transfer and the minority of some persons who shall be 
m existence at the expiration of that period and to whom, 
he attains fall age, the interest created is to belong. 

This is sec. 14 of the Transfer of Property Act, 1882. 

5. No bequest is valid whereby the vesting of the thing bequeathed may be delayed 

beyond the lifetime of one or more persons living at the 

Eule against perpetuity testator's decease and the minority of some person who shall 
In regard to bequests. , . ^ i f ■ j j 4 . 

be in existence at the e.xpiration of that period and to 

whom, if he attains full age, the thing bequeathed is to belong. 

This is sec. 101 of the Indian Succession Act, 1865, now sec. 114 of the Indian Succession 
Act, 1925. 

Note. — The Act in the unamended form BtUl applies to transactions before April 
1930. {Vide s. 15 of Act xxi of 1929). 



670 


APPENDIX II. 


THE HINDU DISPOSITION OF PROPERTY ACT, 

BEING 

ACT NO. XV OF 1916. 


{Received the assent of the Governor-General on the 28^7^ September 

1916.] 

An Act to remove certain existing disabilities in respect of the 
power of disposition of property by Hindus for the benefit 
of persons not in existence at the date of such disposition. 

Whereas it is expedient to remove certain existing 
disabilities in respect of the power of disposition of property 
by Hindus for the. benefit of persons not in existence at the 
date of such disposition ; It is hereby enacted as follows : — 


Short title and extent. 1 - (^) This Act may be Called the 

Hmdu Disposition of Property Act, 1916. 

(2) It extends, in the first instance to the whole of British 
India, except the province of Madras : Provided that the 
Governor-General in Council may, by notification in the Gazette 
of India, extend this Act to the province of Madras. 

As to Madras, see App. I and App. HI. 


2, Subject to the limitations and provisions specified in 
this Act, no disposition of property by a 
oj“Snoun‘’«‘l’ate'’n“.°‘ Hhidu, whcthcr by transfer inter vivos ^ 
or by wiU, shall be invalid by reason only 
that any person for whose benefit it may have been made 
was not in existence at the date of such disposition. 

3. The limitations and provisions 
referred to in section 2 shall be the following 
namely ; — 

(a) in respect of dispositions by transfer inter vivos 
those contained in Chapter II of the Transfer of 
Property Act, 1882, and 

“ Chapter II ” was substituted for “ sections 13, 14 and 20,” by the Transfer 
of Property (Amendment) Supplementary Act 21 of 1929, sec. 12, which came 
into force on the 1st April, 1930. 



DISPOSITION OF PROPERTY ACT. 


671 


{h) in respect of dispositions by will, those contained 
in sections 113, 114, 115 and 116 of the Indian 
Succession Act, 1925. 

The words and figures “sections 113, 114, 115 and 116 of the Indian Succession 
Act, 1925,” were substituted for the words and figures “sections 100 and 101 of the 
Indian Succession Act, 1865,” by the Transfer of Property (Amendment) Supplementary 
Act 21 of 1929, sec. 12. 

4 . [Omitted by the Transfer of Property (Amendment) 
Supplementary Act 21 of 1929, sec. 12.] 

The original sec. 4 was as follows : — 

4. Where a disposition of property fails by reason of any of the limitations referred 
Failure of pi lor dispoal- to in section 3, any disposition intended to take effect after 
or upon failure of such prior disposition also fails. 

5 . Where the Governor-General in Council is of opinion 

that the Khoja community in British India 
ov any part thereof desire that the provi- 
sions of this Act should be extended to such 
community, he may, by notification in the Gazette of India, 
declare that the provisions of this Act, with the substitution 
of the word “ Khojas ” or “ Khoja,” as the case may be, for 
the word “ Hindus ” or “ Hmdu ” wherever those words occur, 
shall apply to that community in such area as may be specified 
in the notification and this Act shall thereupon have effect 
accordingly. 

Note. — The Act in the unamended form still applies to transactions before April 
1930. {Vide s. 15 of Act xxi of 1929.) 



APPENDIX ra. 


THE HINDU TRANSFERS AND BEQUESTS (CITY OF MADRAS) ACT. 

BEING 

AC T VIII OF 1921. 

[Received the assent of the Governor-General on the 27th March 

1921.] 

An Act to declare the rights of Hindus to make transfers and 
bequests in favour of unborn qyersons in the City of Madras. 

Whereas it is expedient to declare tlie rights of Hindus 
to make transfers and bequests in favour of unborn persons 
in the City of Madras ; It is hereby enacted as follows : — 

1 . This Act may be called the Hindu 
Short title. Transfers and Bequests (City of Madras) 

Act, 1921. 

2 . {!) This Act shall apply to all transfers inter vivos 

and wills made by persons governed by 
Application and extent, the Hindu law who are domiciled within 
the limits of the Ordinary Original Civil 
Jurisdiction of the High Court of Madras. 

(2) In the case of transfers inter vivos or wills executed 
before the date of this Act, the provisions of this Act shall 
I'O such of the dispositions thereby made as are intended 
to come into operation at a time which is subsequent to the 
14th February 1914 ; 

Provided that nothing contained in this section shall 
affect bona fide transferees for valuable consideration in whom 
the right to any property has vested prior to the date of this 
Act. 

Ex'planation . — Hindus governed by the Marumakkattayam 
or the Ahyasantana law shall be deemed to be persons governed 
by the Hindu law for the purposes of this Act. 

3 . Subject to the limitations and provisions specified 
m this Act, no disposition of property by a Hindu, whether 
by transfers i^iteT vivos or by will, shall be invalid by reason 



673 


TRANSFERS ANB BEQUESTS ACT. 

I 

only that any person for whose benefit it may have been made 
was not born at the date of such disposition. 

4 . The limitations and provisions referred to in section 
3 shall be the following, namely ; — ■ 

{a,) in respect of disposition by transfer inter vivos, 
those contained in Chapter II of the Transfer of 
Property Act, 1882 , and 

(b) in respect of dispositions by will, those contained 
in sections 113 , 114 , 115 and 116 of the Indian 
Succession Act, 1925 . 

Sees. 3 and 4 were substituted for the origina! secs. 3, 4 and 5, by the Transfer 
of Property (Amendment) Supplementary Act 21 of 1929, etc. 13 which came into force 
on the lat April 1930. The original secs. 3, 4 and 5 were as follows : 

3. A transfer inter liios or disposition by will of anv 
property shall not be invalid by reason only that the 
transferee or legatee is an unborn person at the date of the 
transfer or the death of the testator, as the ease may be. 

4. No transfer of property can operate to create an interest which is to take effect 

Eule a ama t^fter the lifetime of one or more persons living av the into 

111 rcgard''to'tomsf*crs^^*''*'*^ the transfer and the minority of some person who shall 
be in existence at the expiration of that period and to whom, 
if he attains full age, the intere.st created is to belong. 

This is sec. 14 of the Transfer of Property Act, 1882. 

5. No bequest is valid whereby the vestmg of the thing bequeathed may be delayed 

beyond the lifetime of one or more persons living at the 
in regard*to bequestP'*'^'*^^ testator’s decease and the minority of some persons who shall 
be in existence at the expiration of that period, and to whom, 
if he attains full age, the thing bequeathed is to belong. 

This is sec. 101 of the Indian Succession Act, I860, now sec. 1 14 of the Indian Succession 
Act, 1025. 

Note. — The Act in the unamended form stiU applies to transactions before April 
1930. [Vide s. 15 of Act xxi of 1929). 


Transfers and bequests 
in favour of unborn per- 
sons. 



674 


APPENDIX IV. 


THE INDIAN LDIITATION (AMENDMENT) ACT I OF 1927. 

[Received the aseent of Ike Governor-General on the 18fi February 1927.] 

An Act further to amend the Indian Limitation Act, 1908, for certain purposes. 

Section 3. To section 21 oi tlie said .\(;t the following sub-section shall be added, 
namely : — 

“ (3) for the purpose.^ of the said sections [that is, sections 19 and 20J — 

(o) an acknowledgment signed, or a payment (of interest, or part payment) made 
in respect of any liability, by, or by the duly authorised agent of. any widow 
or Oliver limited owner of properly who is governed by the Hindu law, shall be 
a valid acknowledgment or payment, as the case may be as against a reversioner, 
succeeding to such liability , and 

(6) where a liability has been incurred by, or on behalf of, a Hindu undivided 
family as such, an acknowledgment or payment (of interest, or part payment) 
made by, or by the duly authorised agent of, the manager of the family forthe 
time being shall be deemed to have been made on behalf of the whole 
family.” 



ova 


APPENDIX V. 


HINDU INHERITANCE (REMOVAL OF DISABILITIES) ACT, 1928. 

ACT NO. XII OF 1928. 

{Received the assent of the Governor-General on the 20>h September 1928.) 

An Act to amend the Hindu law relating to exclusion from inheritance of certain 
classes of heirs, and to remove certain doubts. 

Whereas it is expedient to amend the Hindu law relating to exclusion from 
inheritance of certain classes of heirs, and to remove certain doubts ; It is hereby enacted 
as follows ; — ■ 

Sliort title, extent ana 1 . (2) This Act may be called the Hindu Inheritance 

application. {Removal of Disabilities) Act, 1928. 

{2) It extends to the whole of British India, including British Baluchistan and the 
Sonthal Farganas. 

(3) It shall not apply to any person governed by the Dayabhaya School of Hindu 
Law. 


2 . Notwithstanding any rule of Hindu law or custom to the contrary, no person 
governed by the Hindu law, other than a person who is and 


Person? not to be exclud- 
ed from inherltauco or rights 
in Joint-family property 


has been/roni birth a lunatic or idiot, shall be excluded from 
inheritance or from any right or share in joint-family 
property by reason only of any disease, deformity or physical 
or mental defect. 


3. Nothing contained in this Act shall affect any right which has accrued or any 

„ , , ,. liabilitu which has been incurred before the commencement 

Saving and exception. ? .i, .j j. x 

thereof, or shall be deemed to confer upon any person any 

right in respect of any religious office or service or of the management of any religious or 
charitable trust which he would not have had if this Act had not been passed. 

Section not retrospective. — If any person suffering from any physical defect has 
before passing of the Act (20th September 1928) been already excluded from inheritance 
or from a share on partition, the Act does not entitle him to claim the inheritance or 
the share on partition. 



676 


APPENDIX VI. 


THE INDIAN SUCCESSION (AMENDMENT) ACT XIV OF 192S. 


[Seceived the assent of the Governor-General on the 22n<i September 192S.] 

An Act further to amend the Indian Succession Act, 1925. 

S. 2. After sab-section (2) of section 372 of the Indian Succession Act, 1925, the 
following sub-section shall be added, namely : — 

“ (3) Application for such a certificate may be^made in respect of any debt 
or debts due to the deceased creditor or in respect of portions 
thereof." 



APPENDIX Vn. 


ACT NO. II OF 1929. 

HINDU LAW OF INHERITANCE (AMENDMENT) ACT. 1929. 

[Received the assent of the Oovernor-Oeneral on the 21si February 1929.] 

An Act to alter the ord-er in mhich certain heirs of a Hindu male dying intestate are entitled 

. to succeed to hts estate. 

Whereas it ia expedient to alter the order in which certain heira of a Hindu male 
dying intestate are entitled to succeed to his estate : It is hereby enacted as follows : — 


Short title, extent a.nci 
application. 


1. (i) This Act may be called the Hindu Law of 

Ipiheritance {Aynendmenl) Act, 1929. 


(2) It extends to the whole of British India, including British Baluchistan and the- 
Sonthal Parganas, but it applies only to persons who, but for the passing of this Act, 
would have been subject to the law of Mitalcshara in respect of the provisions herein 
enacted, and it applies to such persons in respect only of the property of males not held 
in coparcenary and not disposed of by tvill. 


2. A son’s daughter, daughter's daughter, sister, and sister’s son shall, in 

^ ^ ^ . the order so specified, be entitled to rank in the order of 

Order of succession of . ^ ^ , p , , , » , , 

certain heirs. succession next after a father s father and before a father s 

brother : 

For decisions on the above 6e€ti(m see sec, 43-13.d to l^E of Ike text {pp. 44-46). 

Provided that a sister's son shall not include a son adopted after the sister's death. 

Savings. 3. Nothing in this Act shall — 

(а) affect any special family or local custom having the force of law, or 

(б) vest in a son’s daughter, daughter’s daughter or sister au estate larger than, 
or different in kind from, that possessed by a female in property inherited by 
her from a male according to the school of Mitakshara law by which the 
male was governed, or 

(c) enable more than one person to succeed by inheritance to the estate of a 
deceased Hindu male which by a customary or other rule of succession descends 
to a single heir. 

It is observed by the Madras High Court that this legislation is defective in that 
it does not bring in son’s daughter’s son, daughter’s son’s son, daughter’s daughter’s 
son in sec. 2 and place thetn somewhere before sister’s son. A preference for one’s own 
descendants to collaterals is in consonance not only with Indian sentiment but with most 
systems of law (^’). In the actual case, no injustice resulted because the case arose before 
the Act. 


0”) Kalimuthu v. AmmamuthH (1935) 58 Had. 238, 153 I. C. 107, (’34) A. M. 611, 



678 


APPENDIX Vin. 


ACT NO. XVIII OF 1929. 


rNDIAN SUCCESSION (AMENDMENT) ACT, 1929. 


(JJeceiiefi the. assent of the Oovernor-Qeneral on the Isl October 1929.) 


An Act further to amend the Indian Succession Act, 1925, for certain purposes. 


Whereas it is expedient further to amend the Indian Succession Act, 1925, for 
the purposes hereinafter appearing ; It is hereby enacted as follows : — 


Shoit title. 


1 . This Act may be called the Indian Succession 
(Amendment) Act, 1929. 


Amendment of section 2, 
Act XXXIX of 1925. 


2 . After clause (6) of section 2 of the Indian Succession 
Act, 1925 (hereinafter referred to as the said Act), the follow- 
ing clause .shall be inserted, namely : — 


*‘(66) ‘District Judge’ means the Judge of a principal Civil Court of original 
jurisdiction 


3. (J) Sub-section (1) of section 57 of the said Act shall be renumbered as section 57, 

Amendment of section 57, and after clause (6) and before the proviso the word 
Act XXXIX of 1925. “and” and the following clause shall be added, namely 

“ (c) to all wills and codicils made by any Hindu, Buddhist, Sikh, or Jaina on 
or after the first day of January, 1927, to which those provisions are not 
applied by clauses (a) and (6) ”. 


(2) Sub-section (2) of section 67 of the said Act shall be omitted. 

4 . In sub-section (2) of section 213 of the said Act, for the word “class” 
the word “ classes ” and for the words and figures “ sub-seetion 
Amendment of section (1) of section 57” the words, letters and figures “clauses 
213, Act XXXIX of 1925. (a) and (6) of section 57 ” shall be substituted. 

5. The enactments specified in the Schedule are hereby 
Bepeale. repealed. 


THE SCHEDULE. 
Enactments repealed. 
(See section 6.) 


Year. 

No. 

j Short title. 

1926 

! XXXVIJ 

1 

jThe Indian Succession (Amendment) Act, 
j 1926. 

1928 

XXI 

iThe Indian Succession (Second Amend- 
j ment) Act, 1928. 



67 & 


APPENDIX K. 


ACT NO. XIX OF 1929. 


AS AMENDED BY ACTS VII AND XIX OF 1938. 

CHII.D MARRIAGE RESTRAINT ACT, 1928, AMENDED BY VII 
AND XIX OF 1938. 

(Received ike assent of Ike Oovernor-Qeneral on the 1st October 1929.) 

An Act to Restrain the Solemnisation of Child Marriages. 

Whereas it is expedient to restrain the solemnisation of child marriages; It is 
hereby enacted as follows : — 

Short title, extent and 1 . (1) This Act may he called the Child Marriage 

commencement. Restraint Act, 1928. 

(2) It extends to the whole of British India, including British Baluchistan and 
the Sonthal Parganas and applies also to 

(o) all British subjects and servants of the Crown in any part of India ; and 

(6) all British subjects who are domiciled in any part of India wherever they 
may be. 

(3) It shall come into force on the Isl day of April, 1930. 


2. In this Act, unless there is anj-thing repugnant in the 
Definition. subject or context, — 

(cs) “ child ” means a person who, if a male, is under eighteen years of age, and 
if a female, is under fourteen years of age ; 

(b) “ child marriage ” means a marriage to which either of the contracting parties 
is a child ; 

(c) “ contracting party ” to a marriage means either of the parties whose marriage 
is or is about to be thereby solemnised ; and 

(d) “ minor ” means a person of either sex who is under eighteen years of age. 


Punishment for male adult 
below twenty-one years of 
age marrying a child. 


3. Whoever, being a male above eighteen years of age and 
below twenty-one, contracts a child marriage shall be punish- 
able with fine which may extend to one thousand rupees. 


Punishment for male 
adult above twenty-one 
years of age marrying a 
child. 


4 . Whoever, being a male above tweniy-one years of age, 
contracts a child marriage shall be punishable with simple 
imprisonment which may extend to one month, or with fine 
which may extend to one thousand rupees, or with both. 


5 . Whoever performs, conducts or directs any child marriage shall be punishable 
with simple imprisonment which may extend to one month, or 
ln^a'*^*fld°marriage***''"*'° with fine which may extend to one thousand rupees, or with 
both, unless he proves that he has reason to believe that the 
marriage was not a child marriage. 



680 


HINDU LAW. 


6. (J) Where a minor contracts a child marriage, any person having charge of 

the minor, whether as parent or guardian or in any other 
Punishment for parent or capacity, lawful or unlawful, who does anv act to promote the 
guardian concerned in a . ^ ^ ^ r 

child marriage marriage or permits it to be solemnised, or negligently tails 

to prevent it from being solemnised, shall be punishable with 
simple imprisonment which may extend to one month, or with tine which may extend 
to one thousand rupees, or with both : 

Provided that no woman shall be punishable with imprisonment. 

See Ram Josh Agarvdla v. CJiand Mandal (1937) 2 Cal. 794 ; Public Proseetdor v. 
Rattag^'i (1937) Mad. 854, 1C8 I.C. 723, ('37) A.M. 990; Em 2 ieror v. Munshi Ram (1936) 
58 All. 402, 159 I.C. 1007, ('36) A. A. 11. 

(2) For the purposes of this section, it shall be presumed, unless and until the 
contrary is proved, that where a minor has contracted a child marriage, the person having 
charge of such minor has negligently failed to prevent the marriage from being 
solemnised. 

7. Notwithstanding anything contained in section 25 of the General Clauses Act, 

1897, or section 64 of the Indian Penal Code, a Court 
Imprisonment not to be sentencing an offender under section 3 shall not be competent 
section 3. direct that, in default of payment of the fine imposed, he 

shall undergo any term of imprisonment. 

« * « >41 * 



681 


APPENDIX X. 

ACT NO. XXX OF 1930. 

HINDU GAINS OF LEARNING ACT, 1930. 

{Received the assent of ike Governor-General on the 25ih July 1930.) 

A n Act to remove doubt as to the rights of a member of a Hindu undivided family in property 
acquired by him. by means of hia learning. 

Whereas it is expedient to remove doubt, and to provide an uniform rule, as to the 
rights of a member of a Hindu undivided family in property acquired by him by means 
of hia learning ; It is hereby enacted aa follows : — ^ 

Short title and extent. 1* (1) This Act may be called the Hindu Gains of 

Learning Act, 1930. 

(2) It extends to the whole of British India. 

Definitions. 2. In this Act, unless there is anything repugnant in the 

subject or context, — 

(а) “ acquirer ** means a member of a Hindu undivided family, who acquires 
gains of learning ; 

{b) “ gains of learning means all acquisitions of property made substantially 
by means of learning, whether such acquisitions be made before or after the 
commencement of this Act and whether such acquisitions be the ordinary or 
the extraordinary result of such learning ; and 

(c) “ learning ” means education, whether elementary, technical, scientific, 
siiecial or general, and training of every kind which is usually intended to 
enable a person to pursue any trade, industry, profession or avocation in life. 

Gains of learning not to he 3. Notwithstanding any custom, rule or interpretation 

held not to be the separate of the Hindu Law, no gain.s of learning shall be held not to be 

for 'certain 'reaions'^ exclusive and separate property of the acquiier merely 

> cer a eab ns, reason of — 

(o) his learning having been, in whole or in part, imparted to him by any member 
living or deceased, of his family, or with the aid of the joint funds of his family 
or with the aid of the funds of any member thereof, or ^ 

(б) himself or his family having, while he was acquiring his learning, been main- 
tained or supported, wholly or in part, by the joint funds of his family, or by 
the funds of any member thereof. 

Savings. 4. This Act shall not be deemed in any way to affect — , 

(a) the terms or incidents of any transfer of property made or effected before the 
commencement of this Act, 

(b) the validity, invalidity, eTfect or consequences of anything already suSered 
or done before the commencement of this Act, 

(c) any right or liability created under a partition, or an agreement for a partition,, 
of joint family property made before the commencement of this Act, or 

(d) Any remedy or proceeding in respect of such right or liability ; 

or to render invalid or in any way affect anything done before the commencement of thia 
Act in any proceeding pending in a Court at such commencement ; and any such remedy 
and any such proceeding as is herein referred to may be enforced, instituted or continued 
as the case may be, as if this Act had nob been passed. 



682 


APPENDIX XL 


INDIA ACT NO. XVIII OF 1937 AS AMENDED BY ACT XI OF 1538. 

THE HIKDU WOMEN’S EIGHTS TO PROPEETY ACT, 1937. 

Whereas it is expedient to amend the Hindu to give better rights to 'women in 
respect of property : — 

It is hereby enacted as follows : — 

Shoit title ana (1) This Act may be called The Hindu Women’s Rights 

to Propert3' Act, 1937. 

(2) It extends to the whole of British India, including British Baluchistan and the 
Sonthal Parganas hut excluding Burma. 

2. Notwithstanding anj* rule of Hindu Law or custom 
Application. to the contrary, the provisions of section 3 shall nppl}^ where 

a Hindu dies intestate. 

3. (7) When a Hindu governed by the Daj'abhaga School of Hindu law dies 

intestate leaving any property, and when a Hindu governed 
Devolution of propertj by any other school of Hindu law or by customary law 
^ dies intestate leaving separate propert}', his -vNddow, or if there 

is more than one widow all his w'idows together, shall, S'ubiect to the provisions of snb- 
section (J), be entitled in respect of property in respect of which he dies intestate to 
the same share as a son : 


Provided that the uddow of a predeceased son shall inherit in like manner as a son 
if there is no son surviving of such predeceased son, and shall inherit in like manner 
as a son s son if there is surviving a son or son’s son of such predeceased son ; 

Provided further that the same provision shall apply mutatis mutandis to the widow 
of a predeceased .‘'On of a predecea.=ed con. 

(2) AVhen a Hindu governed b\' any school of Hindu law other than the Hayabhaga 
school or bj'^ customary law dies having at the time of his death an interest in a Hindu 

^ joint familj’' property', his widow shall, subject to the provi'^ions of sub-section (5), have 
in the propertv* the same interest as he himself had. 

(3) Any interest devolving on a Hindu widow under the pTovisioiis of this section 
shall be the limited interest known as a Hindu AVoinan's estate, jirovided however that 
she shall have the same right of claiming partition as a male owner. 

(:/) The provisions of this section shall not apply to an estate which by a customary 
or other rule of succession or by the terms of the grant applicable thereto descends of 
a single heir or to any property to which the Indian Succession Act, 1025, applies. 

For decisions on the above section see s. 35 of the text. 

Savings I'bis Act shall apply to the property of any 

Hindu djdng intestate before the commencement of this Act. 

5. For the purposes of -this .SSb, a person shall be 
" expression deemed to die intestate in respect of all property of which he 

haa not. made a testamentary disposition which is capable 
of taking effect. 



683 


APPENDIX XII. 


ACT NO. XIX OF 1937. 

ARYA MARRIAGE VALIDATION ACT. 

An Act to recognise and remove doubts as to the validity of inter-marriages current ammig 

Arya Sainajists. 


Whereas it is expedient to recognise and place beyond doubt the validity of inter- 
marriages of a class of Hindus known as Arya Samajists ; It is hereby enacted as'follows : — 


Short title and extent. 


1 . {!) This Act may be called the Arya Marriage 
Validation Act, 1937. 


(2) It extends to the whole of British India including British Baluch^tan and the 
Sonthal Parganas, and applies also to aU subjects of His Majesty within other parts of 
India, and to all Indian subjects of His Majesty without and beyond British India. 


2. Notwithstanding any provision of Hindu law. 
Marriage between Arya usage or custom to the contrary no marriage contracted 
Samajlats not to be invalid, whether before or after the commencement of this Act between. 

two persons being at the time of the marriage Arya Samajists 
shall be invalid or shall be deemed ever to have been invalid by reason only of the fact 
that the parties at any time belonged to different castes or different sub-castes of Hindu.s 
or that either or both of the parties at any time before the marriage belonged to a religion, 
other than Hinduism. 



«84 


APPENDIX Xm. 


GOVERNMENT OF INDIA 

LEGISLATIVE DEPAETilENT. 

New Delhi, the iih Hay 1946. 

The following Act of the Indian Legislature received the assent of the Governor-General 

on the 2iird April, 1946. 


ACT XIX OF 1946. 

An Act to give Hindu married women a right to separate residence and maintenance under 

certain circumstances. 

IVkekeas it is e-tpedient to proride for the right to separate residence and main- 
tenance under certain circurastauees in the case of Hindu married women ; 

It is hereby enacted as follows ; — 

1. Short title and extent. — (1) This .let may bo called the Hindu Married \Vomen’.s 
Right to Separate Re.oidence and Maintenance Act, 1946. 

(2) It applies to the whole of British India. 

2. Grounds for claiming separate residence and maintenance. — Notwithstanding any 
eu.stom or law to the contrary a Hindu married woman shall be entitled to separate resi- 
dence and maintenance from her husband on one or more of the following grounds, 
namely, — 

(1) if he is .suffering from any loathsome di.seasc not contr, acted from her ; 

(2) if he is guilty of such cruelty towards her as renders it unsafe or undesirable for 
her to live with him ; 

(3) if he i.s guUty of desertion, that is to say, of abandoning her without her consent 
or against her w'ish ; 

(4) if he marries again ; 

(5) if he ceases to be a Hindu by conversion to another religion ; 

(6) if he keeps a concubine in the house or habitually resides with a concubine ; 



Provided that a Hindu married woman shall not be entitled to separate residence and 
maintenance from her husband if she is unchaste or ceases to be a Hindu by change to 
another religion or fails without sufficient cause to comply with a decree of a competent 
Court for the restitution of conjugal rights. 

3. Amount of maintenance . — When allowing a claim for separate residence and 
maintenance under section 2, the Court shall determine the amount to be paid by the 
husband to the wife therefor, and in so doing shall have regard to the social standing of 
the parties and the extent of the husband’s means. 



685 


INDEX 


Account — 

coparcener’s right to demand, 275 [s. 239], 

manager’s liability to, 274-276 [sa. 238-239], 392 [a. 305], 

mode of taking, on partition, 392 [a. 305]. 

Accumulations — 

accumulations of income, right of a widow or other limited heir to, 169-170 [a. 177], 
direction to accumulate in a will or deed of gift, validity of, 478 [a. 397], 

Acknowledgment of debt— 

coparcener, by, 292-293 [a. 249]. 
guardian, by, 596 [a. 531]. 
manager, by, 292-293 [a. 249], 
widow, by, 212 [a. 196]. 

Acts — 

Bombay Hindu Heirs Relief Act, 1866, 344 [a. 288]. 

Caate Disabilities Removal Act 21 of 1850, 2 [a. 4 (i)], 101 (a. 97], 104 [a. 102], 591 
[a. 524], 

Child Marriage Restraint Act, 1929, 518 [a. 427], 679 [App. IX]. 

Christian Marriage Act, 1872, 525 [s. 435]. 

Contract Act 9 of 1872, 4 [s. 4]. 

Cutohi Msmons Act, 1923, 634 [s. 583]. 

Deccan Agriculturists’ Relief Act 17 of 1879, 643 [s. 596]. 

Divorce Act 4 of 1869, 532 [s. 441]. 

Evidence Act 1 of 1872, 4 [s. 4]. 

'* Freedom of Religion Act.” {See Caste Disabilities Removal Act.) 

Guardian and Wards Act 8 of 1890, 3 [a. 4], 590 [s. 519], 593 [s. 528], 596-6C0 
[ss. 532-537]. 

Hindu Disposition of Property Act 15 of 1916, 3 [s. 4 (x)], 443 [s. 360], 455 [s. 373], 469 
[s.383], 470-471 [ss. 385-386], 474 [a. 389], 476 [s. 390], 481 [s. 398], 670 [App. II], 
Hindu Gains of Learning Act 30 of 1930, 3 [s. 4], 258 [s. 231A], 681 [App. X]. 

Hindu Inheritance (Removal of Disabilities) Act 12 of 1928, 3 [s. 4], 102 (a. 98], 
106 [a. 107], 675 [App. V]. 

Hindu Law of Inheritance (Amendment) Act 2 of 1929, 3 [s. 4], 44-46 [s, 43, 13 A- 
13D], 49 [s. 46], 73 [a. 56], 76-79 [ss. 61A to 66], 83 [a. 72 (14)], 677 [App. VII]. 
Hindu Married Women’s Right to separate Residence and Maintenance Act, 1946, 
6S4 [App. XIII]. 

Hindu Transfers and Bequests Act I of 1914 and Act 8 of 1921, 3 [s. 4 (x)], 443 
[s. 360], 455 [a. 373], 469 [a. 383], 471 [ss. 385, 386], 474-476 [ss. 389, 390], 481 
[s. 398], 668 [App. I], 672 [App. III]. 

Hindu Wido-w’s Remarriage Act 15 of 1856, 2 [a. 4 (ii)], 520 [a. 432], 591 [a. 523]. 
Hindu Wills Act 21 of 1870, 453 [a. 369]. 

Hindu Women’s Rights to Property Act 18 of 1937, 3 [a. 4], 26 [a. 35], 632 [.■4pp. XI]. 
Indian Penal Code, 4 [a. 4]. 

Limitation Act 9 of 1908. (See Limitation). 

Majority Act 9 of 1875, 3 [s. 4], 522 [s. 433], 587 [a. 516]. 

NiUtive Converts Slarriage Dissolution Act, 1866, 3 [s. 4], 531 [s. 441]. 

'Partition Act 4 of 1893, 427 [s. 335]. 

Religious Endowments Act 20 of 1863, 513 [s. 424]. 

-RV.n,.;oe VWT 10^7 a-lfl Fa J.-701 Fa .Wil 



INDEX. 


686 

Acts — covtd 

Special Marriage Act, 3 [f. 4], 8 [p. 7], 529 [s. 439]. 

Succession Act 39 ot 1925, 3 [s. 4 (iii)], 449-453 [ss, 368-370]. 155 [ss. 372, 373], 
456, 457 [ss. 375, 37G], 469-474 [ss. 383-387], 474 [s. 389], 478 [S- 394], 479 [s. 397]. 
Succession Certificate Act 7 of 1889, 451 [s. 3li9J. 

Transfer of Property Act 4 of 1882, 3 [s. 4], 442, 443 [s. 358 (2)], 115 [s. 380], 409-474 
[ss. 383-387], 479 [s. 397]. 

Transfer of Property [Amendment) Supplementary Act 21 of 1929, 3 [s. 4], 445 
[s. 360], 479 [s. 397]. 

Trusts Act 2 of 1882, 446 [a. 3GG], 652 [s. 608]. 

Usiirj- Laws Repeal Act 28 of 1855, 643 [s. 596]. 

AdRivedanika — 

a species of stvidhana, 109 [s. 113], 125 [s. 126]. 

Adbyagni— 

a species of stridhana, 109 [s. 113], 125 [s. 126]. 

AdRyavahanika— 

a species of stridhana, 109 [s. 113], 125 [s. 126]. 

Administrator — See Executors. 

Adoption — 

adopted son, rights of, 568-377 [s3. 494-500], 580 [s. 507], (for eJetails, see sub-head 
“Dattaha adoption, results of ”). 
agreement curtailing rights of adopted son, 574 [s. 500]. 

adopting widow, 680-581 [ss. 5O7'°09]. 

cancellation of, 508 [s. 493J. 
ceremonies incidental to adoption — 

datta-homan, whether necessary, 566 [s. 490]. 
giving and receiving, necessity of the act of, 565-366 [s. 489]. 
whether may be delegated, 559 [s. 477]. 
minor ceremonies, whether essential, 665 [s. 488]. 
consideration for, effect of receipt of, 567 [s. 492]. 
custom prohibiting, 334 [s. 445]. 
datta-homan, 565-567 [ss. 488-490]. 
dattaka adoption, results of — 

agreement curtailing rights of adopted son, 574 [s. 500]. 
gift by adoptive father of his property after adoption, 572 [s. 498]. 
guardianship of adopted son, 590 [s. 521]. 
joint family property, riglir of adopted son in, 573 [8. 499]. 

marriage in natural family, whether prohibited,' 569 [s. 491 (3)]. 

partition, rights on, 397 [s. 311]. 

renunciation of .status of adopted son, 568 [s. 493]. 

share of inheritance, how reduced on birth of son to acloPf*'''® father, 571-572 
[a. 497], 

succes.=ion, rights of, ex parte niaterna, 570-571 [s. 490]. 
ex parte paterna, 670 [s. 495]. 

will, whether revoked by adoption, 453 [s. 370], 572-573 L®- 498]. 
devesting of estate on adoption by widow — 

consent of person in whom estate is vested, by, 578-57^* [S- 503]. 

devesting of estate of inheritance, 577-578 [s. 502]. 

maintenance of widow on, 579 [s. 505]. 

stridhana whether devested, 579 [s. 504]. 

where husband joint at time of death, 579 [s. 506], 

separate at time of death, 577-579 [ss, 502, 5i*3]- 



INDEX. 


687 


Adoption — conid. 

estoppel in respect of, 583-585 [s. 513]. 
factum valet, 523 [s. 434], 530-563 Isa. 480, 483]. 
forms of, 534 [s. 446]. 
free consent, 567 [s. 491]. 

gift by adoptive father of his property after adoption, 572-573 [s. 498]. 
illatom adoption, 536 [s. 450]. 

invalid adoption — 

effect of 581 [s. SIO]. 

gift or bequest to person whose adoption is invalid, 682 [s. 511]. 
rights in natural family, whether lost by reason of, 531 [s. 510]. 

hritima adoption, 585 [s. 515], 

limitation period for declaring adoption valid or invalid, 635 [s. 514]. 

suit for possession by adopted son, 5S1 [s. 509]. 

object of, 535 [s. 447]. 
piroof of, 583 [a. 512]. 

results of. /See sub-head “ Daitaka adoption."’ 
revocation of power to adopt, 543 [s. 460]. 
second adopted son and alienations, 581 [s. 509]. 
who may adopt — 535-55S [as. 449-473]. 

baofiefor, 536 [s. 450 (2j J. 
dancing girls, 564 [a. 487]. 

minor, 536 [a. 450 (1) ]. 
naikins, 564 [a. 487]. 

one who has no male issue, 536 [a. 450 (1) ]. 
pregnancy of wife, whether » bar to adoption. 636 [s, 450 (2)]. 
revocation of wife’s power to adopt, 543 [a. 460]. 
widow, 537 [s. 452]. 

autlioiity to adopt, 539-644 [-ss. 453-459]. 

can be given to widow alone, 539 [a. 4.54]. 

conditional authority, 542 [s. 457]. 

exercise of, whether obligatory, 543 [s. 459]. 

extent of authority, 551 [a. 464]. 

form of authority, 541 [s. 456]. 

how to be exercised, 642 [s. 458]. 

revocation of, 543-544 [s. 460]. 

senior widow, right of, to adopt, 540 [a. 455]. 

termination of power to adopt, 653-558 [ss. 471-473]. 

to one of several widows, 540-541 [s. 455], 

to widow conjointly with auotlier, 539 [s. 454 (2)]. 

to widows jointly, 540-541 [s. 455]. 

to widows separately, 540-541 [s. 465]. 

whether can bo mode dependent on consent of another, 

539 [s. 464 (3)]. 

consent of ooparooners, 544-551 [ss. 462, 463]. 

junior widow, 5.17 [s. 462 (8)], 551 [s. 463 (4)]. 

sapindas (in Madras), 544-546 [8. 403 (2)], 546-547 [a. 462 (4)] 

senior widow, 647 [s. 462 (S)]. 551 [a. 463 (4)]. 

should be five, 517 [s. 462 (5)]. 



688 


INDEX. 


Adoption — conid. 

co-widows, adoption by, 552 [a. 470]. 
minor widow, adoption by, 551 ^s. 455]. 
motive of adoption, 652 [s. 469]. 
successive adoptions by, 552 [a. 408]. 
termination of power to adopt, 553-553 [as. 471-473]. 
where husband was joint, 580 [a. 506]. 

separate, 553-556 [s. 471]. 
unchaste widow, by, 552 [a. 466]. 
widow who haa remarried, by, 552 [s. 467]. 

who has succeeded as gotraja sapinda, by, 55 ^ [s. 473]. 
without authority, by, 544-551 [.ss. 461-463]. 
who may be adopted and who not — 560-564 [ss. 480-487]. 
age of son to be adopted, 561 [s. 480 (4)]. 
caste, identity of, 560 [s. 480 (2)]. 
daughter’s son, 560 [a. 480 (3)]. 

dvyamushyayana or son of two fathers, 563 [s. 486]. 

married man, adoption of, in Bombay, 561 [s. 480 (4) (iii) ]. 

mother’s sister’s son, 560 [s. 480 (3) ]. 

naiitins, adoption of daughters by, 564 [s. 487]. 

only son, 562 [s. 481]. 

orphan, 563 [s. 482]. 

same boy, adoption of, by two persons, 563 [s. 484]. 
simultaneous adoption of two or more sons, 563 [s. 483]. 
sister’s son, 560 [s. 480 (3) ]. 
stranger, 583 [s. 483]. 
successive adoptions, 552 [s. 468]. 
who may give in adoption and who not — 538-560 [ss. 474-470]. 
brother, 539 [s. 474]. 
capacity of giver, 560 [s. 479]. 
convert father. 559 [s. 478]. 

delegation of the physical act of giving in adoption, 559 [s. 477]. 

power to adopt, 559 [s. 477]. 
father, 559 [s. 475], 559 [a. 478]. 
grandfather, 5.59 [s. 474]. 
mother, 558 [s. 476]. 
step-mother, 559 [s. 474]. 

widow, adoption by. See under sub-head “ Who may adopt.” 

will, disposal by, of adopter’s property after adoption, 572-573 [s. 498]. 

works of authority on, 13 [s. 13]. 

Adverse possession- 

property obtained by, whether sbridhana, 132 [s. 133]. 
widow against, 222 [s. 201]. 
by, 230-231 [s. 211]. 

Agreement- 

adopted son, curtailing rights of, 574-577 [s. 500]. 
marriage, agreement enabling wife to avoid, 532 [s. 442]. 
partition by agreement, 412-414 [s. 326]. 
partition, agreement not to, 402 [s. 319], 



INDEX. 


689 


AlienatloQ— 

conditions restraining, in a deed of gift, 445 [s. 362], 
will, 477 [a. 393]. 

coparcener, by — 

alienation of coparcenary property, Mit., 301-303 [ss. 255-257], 

alienation of his undivided interest. Day., 341 [s. 282], Mit., 303-304 [ss. 258-260], 

setting aside alienation, equities on, 199 [s. 188], 323-328 [ss. 268, 269]. 

limitation period for, 334 [s. 271]. 
mesne profits on, 323 [s. 268], 324 [s. 269]. 
to what extent, 323-328 [ss. 267-269]. 
who may set aside, 328, 329 [s. 270]. 

debutter property, alienation of, 500 [s. 415]. {See sub-heads “ Mohunt ” and 
“ Shebait ”). 

father, by, Mit., 301 [s. 256], Day., 337 [s. 274]. 

antecedent debt, for payment of. Day., 388 [s. 302], Mit., 369 [s. 29.5]. 
not for payment of, 376 [s. 296]. 
what is, 369 [s. 295 (1)], 370 [s. 295]. 
attachment of son’s interest after, 372 [s. 295 (5)]. 
avyavaharika debt, for payment of, 382 [s. 298]. 
burden of proving immorality of debt, 371 [s. 295 (2)]. 
debt contracted during his minority, for, 386 [s. 300]. 
immoral debts, for payment of, 380 [s. 296 (2)]. 
what are, 382 [s. 298], 

legal necessity, for, 282-291 [ss. 243-245], 372 [s. 295 (7)]. 
legal necessity, without, 376 [s. 296]. 
limitation period for suit to set aside, 334 [s. 271]. 
partition, after, 372 [s. 295 (4)]. 

son’s interest how, far binding on, 371, 372 [s. 295 (3), (7)]. 
time-barred debt, for, 376 [s. 295], 385 [a. 299]. 
unliquidated damages, for, 376 [s. 295]. 
where part only of purchase money applied for antecedent debt, 381 [s. 297]. 

guardian, by- 

benefit of the estate, for, 593 [s. 528]. 
de facto and ad hoc guardian, by, 600 [s. 538]. 
guardian appointed by Court, 593 [s. 528], 599 [s. 536]. 
legal necessity, for, 593 [s. 528]. 
limitation period for setting aside, 594 [s. ,528]. 
natural guardian, by, 593 [s. 528]. 
testamentary guardian, by, 587 [s. 517], 596 [s. 532]. 
manager, by, 279-287 [ss. 242-244], 301 [s. 255]. 
benefit of the estate, what is, 282 [s. 243A]. 
coparcenary property, of, 279 [s. 242], 291 [s. 246]. 
family business, for purposes of, 291 [s. 246]. 
legal necessity, burden of proof of, 285 [s. 244]. 
what is, 282 [s. 243]. 
where proved in part only, 287 [s. 245]. 
mohunt, by — 500 [s. 415]. 

lease, by way of, 501 [s. 415]. 
legal necessity, what is, 501 [s. 415]. 

burden of proof of, 502 [s. 415A]. 
right of management, of, 507 [s. 420]. 



690 


INDEX. 


Alienation— coHf(i. 

Shebait, by, 500 [s. 415]. [iSee sub-head “ Mohunt ”J. 
sole surviving coparcener, by, 302 ^s. 257]. 
widow by— 177-211 [ss. 178-194A]. 

benefit of the estate, 187 [s. 181 B (3)]. 
burden of proof of legal necessity, 188 [s. 182]. 

compromises and family arrangements involving alienation. [See Compromises] . 
consent of reversioners, alienation made with, 191 [s. 183]. 

effect of, 196 [a. 184], 202 [s.lOl], 
alienation made without, 195 [s. 183 (5)]. 

effect of, 196 [s. 185]. 

co-widow, alienation made by one widow without consent of, 187 [s. ISlC]. 
equities on setting aside, 193 [s. 188]. 
estoppel of reversioner, 202 [s. 191]. 

irnmoveable property inherited from husband, of, 177 [s. 178], 

inherited property', of, by wdl. 179 [s. 180]. 

lease, by way of, 197 [s. 186]. 

leave of court, with, 198 [s. 187]. 

legal necessity, for, 184 [s. 181B]. 

what is, 185 [s. 181B (2)]. 
where partial, 200 [s. 189]. 
without, 196 [s. 185]. 
mortgage, by w'ay of, 183 [s. 1810]. 
mortgagee's duty in case of, 188 [s. 182]. 
moveables inherited from husband, of, 178 [s. 179]. 
partial necessity, 200 [s- 189]. 

persons entitled to impeach unauthorised alienations, 197 [s. 18oA]. 

purchaser’s duty in case of, 188 [s. 182]. 

religious or charitable purposes, for, 179 [s. 181A]. 

reversioners, with and without consent of, {See sub-head “ consent of,” etc.) 

election by, 202 [s. 190]. 
spiritual necessity, for, 179 [s. 181A]. 

what is, 180 [181A (2)]. 
trade debts, for, 210 [194A]. 

unauthorised alienations, who may impeach, 197 [185A]. 

remedies against, 223-228 [ss. 202-207]. 

Ancestral business — 264 [s. 234], 276 [s. 240], 279 [s. 241]. 

coparceners, liability of, for debts incurred for, 264 [s. 234], 276 [s. 240]. 
death of a coparcener, effect of, on joint family firm, 264 [s. 234 (1) (i)]. 
debts contracted by manager for, 276 [s. 240]. 
heritable as.set, whether a, 264 [s. 234]. 

Insolvency of joint family firm, 322 [s. 266]. 

joint family firm distinguished from partnership, 264 [s. 234]. 

manager, powers of, with respect to, 264 [s. 234], 279 [s. 241], 292 [s. 248A]. 

minor, liability of, for debts contracted for, 266 [s. 234 (1) (v)]. 

necessity for loan, enquiry as to, 276 [s. 240]. 

new business of adult membere, 266 [s. 234 (2)]. 

new business with a stranger, 268 [s. 234 (3)]. 

parties to suits in respect of, 295 [s. 251 (4)]. 

widow, debts contracted by, 210 [s. 194A], 211 [s. 195], 

Ancestral property — See Coparcenary property, 
adopted son, rights of, in, 573 [s. 499]. 
bequest of, by father, 449 [s. 368 (2) (ii)]. 



INDEX 


691 


Ancestral property— com^d. 

essential features of, 243 [s. 2231. 
father’s interest in, Dayabhaga, 337 [s. 274]. 

Mitakshara, 249 [s. 224]. 

father, alienation by, to pay his own debts, 3G9 [s. 295], 
gift of, by father, Day., 440 [s. 357 (3)] ; Mit., 250-251 [ss. 225, 226]. 
gift of property by father to son on occasion of son’s marriage, whether ancestral 
property, 247 [a. 223 (5)]. 
inherited property how far ancestral — 
from collaterals, 246 [s. 223 (3)]. 
from females, 246 [s. 223 (3)]. 
from maternal grandfather, 245 [s. 22.3 (2)]. 
from maternal uncle, 245 [s. 223 (2)]. 
from paternal ancestor, 243 [s. 223 (1)]. 
moveables, power of father over, 250 [s. 225]. 
partition, share allotted on, 246 [s. 223 (4)]. 
property given by paternal ancestor, 247 [s. 223 (5)]. 
purchases made with, 249 [s. 223 (6)]. 
recovery of. lost to family, 259 [s. 232]. 
release by father of his interest in, 249 [a. 224]. 
rights of sons, Dayabhaga, 336-339 [ss. 273-277]. 

Mitakshara, 249 [s. 224]. 
savings of, 249 [s. 223 (6)]. 
what is, Dayabhaga, 337 [s. 276]. 

Mitakshara, 243 [s. 223], 251 [s. 227], 253 [s. 228]. 

Antecedent debt — >See Debts. 

Anwadheyaka — 

a kind of sfridliana, 110 [a. 113 (2)]. 

succession to. Day., 153 [s. 156] ; Mad. 147-149 [s. 152 (3), (4)] ; May., 143 [s. 161]. 

Appointment— 

power of, 480 [s. 398]. 

Apratlbandha Daya — See Unobstructed heritage, 
is unobstructed heritage, 240 [s. 218 (1)]. 

Arbitration — 

manager’s power to refer to, 292 [s. 247]. 

Arya Samajists— 

application of Hindu Law to, 6 [s. 6]. 

Ascetic — 

exclusion from inheritance, 107 [s. 111], 
succession to, 74 [s. 58]. 

Asura — 

a form of marriage, 519 [s. 428]. 

distinction between brahma and asura forms, 519 [s. 428]. 

Atma bandbus— 

order of succession among, 66-68 [s. 54]. 
who are, 48 [s. 46 (4)], 58 [s. 49], 66-63 [s. 54]. 

Attachment — 

coparcenary interest, attachment of, 255][8. 229 (2) (ii)], 345 [s. 289]. 

property, attachment of, and remedies of son, 357 [a. 294A]. 
maintenance, arrears of, 62S [s. 578]. 



692 


INDEX. 


Aurasa— 

legitimate son, 535 [s. 446]. 

Avaruddha Stree— 

maintenance of, 609 [s. 553]. 

Ayautaka— 

a kind of stridhana, 151 [s. 154 (4)]. 
succession to. Day., 153 [a. 157]. 

Bandhus— 

are bhinna -golra sapindas, 30 [s. 37]. 
atma bandhus, 48 [s. 46 (4)], 58 [s. 49]. 
descendants of remoter ancestors, 71 [a. 55]. 
classes of bandhus, 48 [s. 46 (4)], 58 [s. 49]. 
enumeration of, 48 [s. 46]. 
female bandhus in Bomba3% 72 [s. 56]. 

in Madras, 72 [s. 56]. 

heritable bandhus, rules for determining, 50 [s. 47]. 

■who are, 57 [s. 48]. 

matri bandhus, 48 [s. 46 (4)], 58 [s. 49]. 
order of succession among bandhus, 66 [s. 54]. 

rules for determining order of succession, 59-66 [**• 50-53B], 71 [s. 55]. 
table of succession, 70A. 

'ij.. 4& 

relationship as bandhu how determined, 50 [s. 47]. 
summary of rules as to order of succession among, 65 [s. 53A]. 

■who are, 48 [s. 46]. 

Benaml Transactions — 

advancement of wife and children, 649 [s. 605]. 

burden of proof, 650 [s. 605]. 

child, propertj' bought in name of, 649 [s. 605]. 

creditors, fraud upon, 652 [s. 608]. 

criterion of, 650 [s. 605]. 

decree against benamidar, 653 [s. 610]. 

definition of, 648 [s. 604]. 

furzee, known as, among Mahomedans, 648 [s. 604]. 
public policj-, transaction against, 653 [s. 609]. 

purchase made benami at a court-sale or sale for revenue arrears, 651 [s. 606]. 
by member of joint Hindu family, 651 [s. 606]. 
from benamidar, 651 [s. 607], 

real title, effect given to, and exceptions to tbe rule, 648 [®- 605]. 

suit by benamidar, 653 [s. 61 1]. 

transfer by benamidar for value, 651 [s. 607], 

wife, property bought in name of, 649 [s. 605]. 

Benares school — 

female heirs according to, 86 [s. 62]. 
sub-school of Mitakshara school, 12 [s. 12 (1)]. 
works of authority in, 11-12 [ss. 11-12]. 

Bengal school — See Dayabhaga school. 

Bequest— (See Will. 

alternative bequest, 474 [s. 388]. 
ancestral property, of, by father, 449 [s. 368]. 
bequeathable property, 449 [s. 368], 
charity, to, 490 [s. 404]. 



INDEX. 


693 


BecilieSt — contd. 

class, to a, 471 [a. 386], ' 
construction of, 458 [b. 377]- 
contingent bequest, 474 [s. 389]. 

coparcenary interest, of. Day-. 341 [s. 282] ; Mit., 449 [s. 368]. 

daughter or other female, tP, 136 [s. 143], 484 [a. 401]. 

dharmn, to, 490 [s. 405], 63l [a. 582 (2) ]. 

disqualified heirs, to, 448 [s- 367]. 

executory bequest, 474 [s. 389]. 

i-xthtr , , Va Vm. ■s.OTi, ‘I4T '];*>■ -^3- \ 

females, to, 136 [a. 143], 484 [a. 401]. 

idiots, to, 448 [s. 367], 

idol, to, 495 [a. 410]. 

impartible estate, of, 451 [s- 368 (2) (iv) ]. 
infants, to, 449 [s. 367], 

person whose adoption is ioi^alid, to, 582 [a. 511], 
religious or charitable purposes, for, 490 [s. 404]. 
remainder, by way of, 476 (s- 390]. 

separate or self-acquired property, of, 449 [s. 368 (2) (i) ]. 

sole surviving coparcener, by. 449 [a. 368 ]2) (ii) ]. 

atridhana, of, 451 [s. 368 (2) (iii) ]. 

subject-matter of, 449 [s. 3fl8]. 

two or more persons, to, 482 [a. 400]. 

unborn person, to, 454-456 [ss. 372-373]. 

undivided interest, of, by coparcener, 449 fa. 368 (2) (ii) ]. 

widow or other female, to, 136 [a. 143]. 484 [a. 401]. 

Betrothal- 

minors, of, 529 [a. 437]. 
revocability of, 529 [a. 437]- 

Bhartridatta— 

a kind of stridhana, 125 [a. 126], 143 fa. 150], 147 [a. 152 (2) ]. 

succession to, according to. Mad., 147-149 [a. 152] ; May., 144 [a. 151 (1) (3) ]. 

Bhlnna-gotra sapindas— 5ee Bandhus. 

-wYio are, IT) 1®. 7)5^ 

Blindness — 

whether effects exclusion from inheritance, 101 [a, 98]. 

from partition, 105 [a. 106]. 

Bombay school — 

order of succession, according to, 82-87 [ss. 71-77], 
sub-school of Mitakshara school, 12 [s. 12 (1) ]. 
works of authority in, 13 [a- 12 (2) ]. 

Sunni, of Gujarat, 630 [s. ^82]- 

EraHma— 

a form of marriage, 519 [s. ^28 (1) ]. 

distinction between hrahm^ and asura forms, 519 [s. 428 (2)] 

Brabmachari — 

succession to, Mit., 74 [s. 58]. 



694 


INDEX. 


Bralimans — 

endowment for feeding, 490 [ss. 404, 405]. 
one of the four Hindu castes, 1 [s. 1]. 

BraHino Samaj — 

application of Hindu Law to members of, 6 [s. 0 Expl.]. 

Breach of promise of marriage — 

suit for damages, for, 528 [s. 437]. 

Brother — 

adoption, whether can give in, 555 [s. 474]. 

as an heir.Mit., 43 [s. 43 (9)], 83 [s. 72 (11)]; Day., 96 [s. 88 ((>)]: May.. 43 [a. 43 (9)], 
85 [s. 77 (9)]. 

gift by, to sister, whether alridhana, 109 [s. 113]. 
half-brother. .See Half-brother. 

partition between brothers, 438 fs. 321 (2)], 438 [s. 355]. 

alridhana heir to sister, Mit., 138-151 [ss. 145-153] ; Day., 151"154 [aa. 154-157]. 
to aulka, 139 [s. 146]. 

Brother’s daughter — 

aa a bandhu — 

in Bombay, 72 [a. 56]. 
in Madras, 72 [_s. 50\. 
gift or bequest to, 130 [a. 143]. 

property inherited by, from uncle, whether atridhana, 129-13d [s. 130 (3) ]. 

Brother’s daughter’s daughter’s son — 
as a bandhu, Mit., 66 [s. 54 (11) ]. 

Brother’s daughter’s son— 

as a bandhu, Mitakshara, 48 [s. 46 (4)], 66 [a, 54 (5)]. 
as a sapinda, Daj-abhaga, 96 [a. 88 (27)]. 

Brother’s daughter’s son’s son — 

as a bandhu, Mitakshara, 06 [a. 54 (9) ]. 

Brother’s son — 

as an heir to his uncle, Mit., 44 [s. 43 (10)1, 83 fs. 72 (12) ] > May., 87 [a. 77 (10)]; 
Daj'., 94 [s. 88 (10)]. 

aa a alridhana heir, Dayabhaga, 153 [s. 155 (9)], 154 [a. 167 (9)] ; Mithila, 151 
[a. 153]. 

Brother’s son’s daughter’s son — 

aa a bandhu, Mitakshara, 66 [s. 54 (8) ]. 
as a sapinda, Dayabhaga, 96 [s. 88 (28)]. 

Brother’s son’s son — 

as an heir, Mit,, 44 [s. 43 (11)], 84 [s. 72 (23)] ; Day., 96 [s. 88 (11)]. 

Brother’s son’s son’s son — 

aa an heir, Mit., 46 [a. 43 (22)], 84.[3. 72 (24)] ; Day., 93 [s. 84]. 

Brother’s son’s son’s son’s son — 

as an heir, Mit., 46 [s. 43], 84 [s. 72 (25)]. 

Brother’s son’s son’s son’s son’s son— 

as an heir, Mit., 46 [s. 43], 84 [s. 72 (26)]. 

Brother’s widow — 

as an heir in Bombay, 84 [.s. 72 (28)]. 

whether takes a limited estate, 78 [s. 64 (3)], 165 [s. 174 (2)], 



INDEX. 


695 


Burden of proof— ^'ee Presumption. 

alienation of debutter property, 502 [s. 415-A]. 

of inherited property by widow, 188 [a. 182]. 
of joint family property by manager, 285 [s. 244]. 
benami transactions, 650 [s. 605]. 
custom, of, 17 [s. 19]. 

debt, nature of, -when contracted by father, S44 [s. 288]. 

W'here denied by sons, 371 [s. 295 (2)]. 
gift, W'here made by a Hindu widow', 446 fs. 363]. 
joint family property, where property is alleged to be, 260 [s. 233]. 
necessity of, 502 [s. 415-A]. 
property in possession of widow, 134 [s. 140]. 
will, of capacity to make, 448 [s. 367]. 

Business- 

alienation by manager for purposes of, 291 [s. 246]. 

widow for payment of debts, 210 [s. 194-A]. 
ancestral, 264 [s. 234], 

debts contracted by manager for family business, 323 [a. 240].- 
inherited by widow', 210 [s. 194-A]. 
new business, 266 [s. 234 (2) ]. 

Caste- 

adoption and, 560 [a. 480 (2)]. 

C’aste Disabilities Removal Act, 1850, 2 [s. 4 (i)], 101 [s. 97], [s- 524]. 

caste questions, 5 [s. 5]. 

civil rights not lost by degradation from, 2 [s. 4 (i)]. 
enumeration of castes, 1 [s. 1], 

Kayasthas, 1 [s. 1]. 

loss of, whether aSecta rights of guardianship, 591 [s. 524]. 

of maintenance, C19 [s. 665]. 
of succession, 101 [s. 97]. 

llarathas, 1 [s. 1]. 
marriage and, 523 [s. 435]. 
principal castes, 1 [s. 1]. 

son born after expulsion from caste, rights of, 101 [s, 97]. 

Charitable endowments — See Endowments. 

Chastity — See Unchastity. 

Christianity — 

conversion to, whether effects e.xclusion from inheritance, 101 
and succession, 7 [s. 7 (2)]. 

whether operates as dissolution of joint family, t®- 334]. 

Collaterals — 

daughters of, as heirs in the Bombay Presidency, 81 [s. 70]. 
debts incurred by, 344 [s. 288]. 

property inherited from collaterals is not ancestral property. S'!® 223 (3)]. 

Commentaries — 

as a source of law, 10 fs. 9]. 

duty of courts to administer law as found in, 10 [s. 9]. 
schools and commentaries, 12 fs. 12], 



696 


INDEX. 


Compromise- 

father, hy, 292 [a. 248]. 
guardian, by, 596 [a. 530]. 

widow or other limited heir, by involving alienation — 

claims made bj' next reversioner, of, 210 [a. 194], 
where reversioner is a party, 205 [a. 192], 

is not a party, 207 [a. 193]. 

Concubine — 

maintenance of, 609 [a. 553]. 

Conjugal rights— 

restitution of, 533 [s. 444]. 

Contracts — 

Indian Contract Act 9 of 1872, 4 (s. 4]. 
manager of joint family business, by, 279 [s. 241], 
married woman, by, 157 [a. 165]. 
natural guardian, by, 594 [a. 529]. 

Convert — <See Conversion. 

applicability of Hindu law to converts to Hinduism and their descendants, 5 [s. 6]. 
civU rights whether lost by conversion, 2 [s. 4(1)]. 

.,^convert3 to Christianity, 7 [s. 7 (2) ]. 

converts to Hinduism, treated as Sudras for purposes of marriage, 523 [s. 435(21 ], 
converts to Mahomedanism, applicability of Hindu Law to, 8 [s. 7 (4) ]. 
converts to Mahomedanism ; Khojas and Cutchi Memons, 631 [s. 582], 
son born after conversion, rights of inheritance of, 101 [s. 97]. 

Conversion — See Converts. 

Caste Disabilities Eemoval Act, 1850, effect of, 101 [s. 97J. 

Christianity, to, and succession, 7 [s. 7 (2) ]. 

civil rights %vhether lost by, 2 [s. 4 (1) ]. 

coparcener, of, and dissolution of joint family, 427 [s. 334]. 

Cutchi Memons, 631 [s. 582]. 

father, of, and guardianship, 591 [s. 525]. 

husband of, and wife’s right of maintenance, 612 [s. 557]. 

Khojas, 631 [s. 582]. 

Mahomedanism, to, and right to give in adoption, 559 [s. 478]. 
and succession, 8 [s. 7 (4) ]. 

marriage, whether dissolved by conversion, 531 [s, 441 (2)]. 
minor of, and guardianship, 592 [s. 527]. 
mother, of, and guardianship, 591 [s. 526]. 
partition and, 427 [s, 334], 

succession, right, to how far affected by, 101 [s. 97]. 

Coparceners — See Coparcenary, Coparcenary property, 
absent coparcener and partition, 398 [s. 313]. 
adoption of sole surviving coparcener, effect of, 568 [s. 494 (2)]. 
alienation by manager, when binding on coparceners, 279 [p. 242]. 
alienation by — See also Alienation. 

coparcenary property, of, 301-303 [ss. 255-257]. 
undivided coparconary interest, of, 303-323 [ss. 258-266]. 
unauthorised, right to set aside, 323-334 [ss. 267-270]. 
attachment of coparcener’s interest, 345 [s. 289]. 



INDEX. 


697 


Coparceners— con/d. 

bequest of coparcenary property by sole surviving coparcener, 449 [s. 368 (2) (ii)]. 
undivided interest by a coparcener, Mitakshara, 449 [a. 368]. 

Dayabhaga, 341 [a. 282], 

coparcenary interest, 238 [s. 216]. 

debts contracted by manager, coparcener’s liability for, 264 [s. 234 (I) ], 276 [s. 240]. 

decree against manager, when binding on coparceners, 299 [s. 253]. 

devolution of deceased coparcener’s share. Mit., 255 [s. 229] ; Day., 340 [s. 281]. 

disqualified coparcener and partition, 402 [s. 318]. 

female coparceners and partition, Dayabhaga, 434 [s. 348]. 

females, whether can be coparceners ivith males, Mit., 239 [s. 217] ; Day., 337 [s. 277]. 
gift of undivided share by a coparcener, Mitakshara, 303 [s. 258]. 

Dayabhaga, 341 [s. 282]. 

illegitimate children of a Christian father by a Hindu mother, whether Hindu law 
of coparcenary applies to, 6 [s. 6 (iii) ]. 
insolvency of, 316 [s. 265]. 

joint family firm, efiect of death of a coparcener on, 264 [s. 234 (1) (i) ]. 
limitation, eflect of addition of a coparcener after expiiy of, 298 [s. 252]. 
inaintenanoo of, out of coparcenary property, 604 [s. 543]. 
marriage expenses of male coparceners and their daughters, 530 [s. 440]. 
minor coparcener and partition, Mit., 394 [s. 308] ; Day., 434 [s. 348]. 
mortgage of undivided coparcenary interest, Mit., 303-304 [ss. 259-260] ; Day., 341 
[s. 282]. 

mortgage, suits on, and parties to, 293 [s. 251]. 
mortgagee from, rights of, 314 [s. 263]. 

non-separating coparceners on partition, status of, 419 [s. 328 (3)] 
parties to suits, 293 [s. 251]. 

partition, right to demand, 393 [s. 306]. See Partition, 
presumption as to business carried on by a coparcener, 269 [s. 234 (4) ]. 

as to coparcenary and coparcenary property, 260 [s. 233]. 
purchaser of undivided share, rights of, Mit., 304 [s. 261] ; Day., 340 [a. 280]. 

joint possession, to, 305 [s. 261 (1)]. 
mesne profits, to, 310 [a. 261 (3)]. 
partition, to, 309-311 [s. 261 (2) to (5)]. 
specific performance, to, 312 [s. 261 (7)]. 

renunciation of share by, 315 [s. 264], 
rights of coparceners, 270 [s. 235]. 

accounts, to demand, 272 [s. 235 (6)], 274-276 [s.s. 238, 239]. 
alienation of undivided interest, Mit., 272 [s. 235 (7)], 304-306 [ss. 259, 260] ; 
Day., 341 [s. 282]. 

defined share under the Dayabhaga, 339 [s. 279]. 

erecting building on joint family land with consent, right of, 272 [s. 236 (4)]. 
exclusion from joint family property, on, 271 [s. 235 (3a)]. 
income, whether entitled to specific share of, Mitakshara, 270 [s. 236 (2)] ; Day., 
341 [s. 284]. 

j oiiit possession and enjoyment, right to, Mit., 271 [s. 235 (3)] ; Day., 339 [s. 279]. 
maintenance, right of, 274 [s. 237]. See Maintenance, 
partition, right to enforce, Mit., 272 [s. 235 (5)] ; Day., 342 [s. 2851. 
possession, unity of, 270 [s. 235 (1) ]. 

succession and survivorship, Mit., 272 [s. 235 (8)] ; Day., 340 [s. 281]. 
suing alone as representing family, right of, 296-297 [s. 251 (5), (6)]. 



698 


INDEX. 


Coparceners— con(<?. 

sale of undivided share by private contraet, Mitabshara, 303, 304 [es. 259, 260], 

Dayabhaga, 341 [s. 282]. 

sale of undivided share in execution, Mit-, 345 [s. 289] ; Day., 340 [s. 280]. 
separate property, rights over, 243 [s. 222]. 
share of, undefined, 238 [s. 216]. 

defined, Day., 339 [a. 279]. 
sole surviving coparcener — 

devolution of property held by, 25 [s. 34 (2) (ii) ]. 
powers of, over joint property, 302 [s. 257]. 
son, after-born, of a distpialificd coparcener, and partition, 106 [s. 109]. 
suits by, 293 [s. 251]. 

sucoes.sion, devolution of deceased coparcener's share b 3 ', Da 3 'abhaga, 340 [s. 281]. 
survivorship, devolution of deceased coparcener’s share b 3 ’, Mitakshara, 255 [s. 229]. 
who are, Mitakshara, 233-238 [ss. 213-215]. 

Da 3 -abhaga, 337 [a. 277]. 

Coparcenary — *Vee Coparceners, Coparcenary propert 3 ’. 
definition of, 233 [s. 213]. 

formation of, Mit., 235 [s. 214] ; Da 3 t, 337 [s. 2771. 
genesis of, Jlit., 235 [a. 214] ; Day., 337 [s. 277]. 
how created. Mit., 235 [s. 214 (2) ] ; Da 3 '., 337 [s. 277]. 
limits of, 230 [s, 215]. 

undivided coparcenary interest, features of, Mitakshara, 238 [s. 216]. 

Dayabhaga, 339 [s. 279]. 

Coparcenary property — See Coparceners, Coparcenary, 
accretions to, 249 [s. 223 (6)]. 
adopted .son, rights of, in, 573 [s. 499]. 
adverse possession, 390 [s. 304], 
alienation of, by father, 301 [s. 256]. 

manager, 279 [s. 242], 
sole surviving coparcener, 302 [s. 257]. 
who can make, 301 [s. 255]. 
ancestral property, 243 [s, 223]. 

bequest of undivided interest, Mitakshara, 302 [s. 257], 449 [s. 368]. 

Dayabhaga, 341 [s. 282], 

bequest bj^ father of his self-acquired property to son, 247 [s. 223 (5) ]. 
coparcenary interest, 238 [s. 216]. 

debts of coparceners, coparcenary property when liable for, 345 [s. 289]. 
devolution of, by survivorship, Mitakshara, 255 [s. 229]. 

by succession, Dayabhaga, 340 [s. 281]. 
distinguished from joint property of English law, 212 [s. 221 (2) j. 
father’s power over ancestral property, Mitakshara, 249-251 [ss, 224-226]. 
gains of science, or learning, 257 [s. 231], 

gift by father of his self-acquired property to son, 247 [s. 223 (5) ]. 

of ancestral property, 250-251 [ss. 225-226], 
gilt of undivided interest, Mitakshara, 303 [s. 258], 

Dayabhaga, 341 [s. 282], 

incidents of, 242 [s, 221]. 
income of, 274 [s. 237]. 
joint acquisitions, 253 [s. 228]. 

made with aid of joint family property, 253 [s. 228 (2) ]. 

without aid of joint family property, 253 [a. 228 (3) ]. 



INDEX. 


699 


Coparcenary property— con(«J. 

male issue of coparceners, rights of, 242 [s. 221 (1) (b^ ]. 
management of, 274 [s. 237]. 
marriage expenses, liability for, 530 [s. 440]. 
mortgage of, 966 ‘.alienation’ above. 

mortgage of undivided interest, Mitaksliara, 303-304 [as. 259-2fi0]. 

Dayabhaga, 341 [e. 282]. 

Official Assignee, rights of, 318 [s. 265]. 
parties to suits relating to, 293 [s. 251]. 
partition, liable to, 389 [s. 303]. 

persons entitled to, 236 [s. 215]. 
share allotted on, 246 [s. 223 (4) ]. 
presumptions as to, Mitakshara, 260 [s. 233]. 

Dayabhaga, 342 [s. 286]. 
property inherited from — 

collaterals, 246 [s. 223 (3)]. 
females, 246 [s. 223 (3) ]. 
maternal grandfather, 245 [s. 223 (2) ]. 
paternal ancestor, 243 [s. 223 (1) ]. 
property thrown into common stock, 251 [s. 227]. 
purchaser of undivided share, rights of, 304 [s. 261]. 
aate qI, see ‘ a.U.et«3,tiQtx’ 

sale of, by father fpr payment of his debts, 369 [s. 295]. 

in execution of decree against father, 356 [s. 294]. 
sale of undivided interest, Mitak.shara, 303-304 [ss. 259-260]. 

Dayabhaga, 341 [s. 282]. 

setting aside unauthorised alienations of, 323-334 [ss. 267-270]. 
extent to which tliey may be set aside, 323-328 [ss. 267-269]- 
who may sue for, 328 [s. 270]. 

.sole surviving coparcener, alienation by, 302 [s. 257]. 
son’s interest in, Mitakshara, 285 [s. 224], 

Dayabhaga, 336 [s, 273]. 
survivorship, devolution by, 242 [s. 221 (1) (a) ], 
unobstructed heritage, 240 [s, 218], 241 [s. 219]. 

what is, Mit., 241 [s. 220], 243 [s. 223], 251 [s. 227], 263 [s. 22^1 : Day-. 339 [s. 278], 

Court-fee — 

declaratory suit by reversioner, 225 [s. 205]. 

Co-wldows— 

adoption by, 647 [s. 462 (8)], 551 [s. 463 (4)]. 552 [s. 470]. 
alienation by one of, without consent of others, 187 [s. 181 C] 
joint tenants, whether take as, 39 [s. 43 (4)]. 
partition between, 39 [s. 43 (4)]. 

Creditor — See Debts. 

creditor’s suit and limitation, 350 [s. 292]. 

for money lent, 503 [s. 416]. 

Crown — 

escheat to, Mit., 74 [s. 59] ; Day., 98 [s. 92] ; Stridhana, 154 [s. 1^8]. 
grant of land made by the Crown, 445 [s. 362], 

maintenance, liability of Crown for, when property taken by 605 [s. 544 A]. 



700 


INDEX. 


Castom — 

adoption, cusiom prohibiting, 534 [s. 445]. 
as a iuurLU of Hindu Law, 9 [s. 8], 15 [a. 15]. 
basia of, 10 [s. 8 (3)]. 
burden of proof of, 17 [s. 19]. 

conflict between custom and text how settled, 15 [a. 15]. 
discontinuance of, 16 [s. 18]. 
divorce by, 630 [s. 441]. 
essentials of, 16 ]s. 17]. 

exclusion from inheritance of daughter by, 42 [s. 43 (5) ]. 
family custom, 16 [s. 17 (2) ]. 
invalid custom, 17 [s. 20]. 

judgment relating to existence of custom when admissible evidence, 16 [s. 17], 
kinds of, 15 [a. 16]. 

local and family custom, distinction between, 16 [s. 18]. 
property impartible by, 635 [s. 585]. 
stridhana by, 133 [s. 1.36]. 

Catch! Memons — See Hemons. 

bequest in favour of unborn person, 632 [s. 582]. 

Cutchi Memons Act, and Mahomedan law of succession, 634 [*■ 583]. 

Hindu law, how far applies to, 630 [s. 582]. 
inheritance and succession, 630 (s. 582 (,H 634 l]8. 583\. 

Joint Hindu familj’ system, bow far applies to, 630 [s. 582 (2)]- 
marriage of, deemed to be in approved form, 520 [s, 429], 6^- 5S2]. 

of Mombasa, 633 [.s. 582], 

Shariat Act, 1937, subject to the provisions of, 630-634 [ss. 582-553]. 
survivorship, principle of, how far applies to, 630 [s. 582 (2)]- 
synopsis of Cutchi Memon cases, 632-633 [s. 582], 
wiUs of. 632 [s. 532]. 

Damdapat— 

capitalization of intere.st by subsequent agreement, 644 [s. 598]. 

Contract Act, rule of damdupat not abrogated by, 4 [s. 4]. 

Deccan Agriculturists’ Relief Act and, 643 [s. 596]. 
definition of, 643 [s. 596]. 

fresh bond for principal and interest, 644 [s. 598]. 

Limitation Act and, 643 [s. 596]. 

mortgage after Transfer of Property Act, 647 [s. 603]. 

mortgage of immoveable property without possession, 646 002]. 

mortgage with possession, 646 [s. 602 (2) ]. 

persons entitled to claim benefit of the rule, 645 [s. 601]. 

places in which rule applies, 645 [s. 600]. 

pledge of moveables, 646 [s. 602J. 

principal, what is for purposes of the rule, 644 [ss. 597-598]- 
suit, does not apply after date of, 644 [s. 599]. 
transactions to which rule applies, 646 [s. 602], 

Usury Laws Repeal Act and, 643 [s. 596], 

Dancing girls — 

adoption of daughters by, 564 [s. 487]. 

sons of, application of Hindu law to, 6 [s. 6 (vi) ]. 

succession to property of, 156 [s. 164], 



INDEX. 


701 


Datta Homam — 

ceremony of, and adoption, 566 [s. 490]. 

Dattaka adoption — See Adoption. 

Dattaka Chandrika — 

a work on adoption, 13 [a. 13]. 

Dattaka Mimamsa — 

a work on adoption, 13 [s. 13]. 

Daughter— 

as an heir to her father — Mit., 40 [ s. 43 (5) ], 82 [s.72 (7)] ; Day., 95 [s. 88 (5)]. 
exclusion from inheritance by custom, 42 [s. 43 (5) ]. 
illegitimate daughter, 42 [s. 43 (5)]. 
priority among daughters, Mitakshara, 40 [s. 43 (5)]. 

Dayabhaga, 95 [s. 88 (6)]. 

survivorship among daughters, 23 [s. 31], 41 [s. 43 (5)], 82 [s. 72 (7)]. 
unohastity of, and inheritance, Mitakshara, 41 [s. 43 (5) ], 100 [s. 96]. 

Dayabhaga, 95 [s. 88 (5) ], lOO [s. 96]. 

whether takes an absolute or a limited estate : Bombay, 41 [g. 43 (5)], loi 

[8. 170 (2) ]. 

Other prdvinces, 41 [s. 43 (5)], 
159 168 (4)]. 

as an heir to her mother's stridhana — 

i5'aya6ilaga, fdi'L's. I'diSj’, fss. fjTtf-ftTrj’. 

Madras, 147 [s. 152]. 

Mayukha, 143 [s. 151]. 

Mitakshara, 140 [s. 147]. 

Mithila, 149 [s. 153]. 

unchastity whether a bar to inheriting stridhana, 134 [s, 139]. 
whether takes an absolute or a limited estate ; Bombay, 153 [s, 171], 

Other Provinces, 160 [s. 169]. 

bequest to, 136 [s. 143]. 

daughters of descendants and collaterals as heirs in Bombay, 81 [s. 70]. 
gift to, by father, 250-251 [ss. 225-226]. 

by mother on occasion of marriage, 186 [s. 181 B (v) ], 
when absolute, 136 [s. 143]. 
illegitimate daughter and maintenance, 609 [s. 552], 
maidenhood, property acquired during, 133 [s. 137]. 
maintenance of, 606 [s. 546]. 
marriage expenses of, 390 [s. 304], 530 [s. 440]. 
partition, suit for, and party, 424 [s. 333 (2) (b) (iv) ]. 

Daughter’s daughter— 

as an heir under Act 2 of 1929, 45 [s. 43 (13B)]. 

before the Act in Bombay, 72 [s. 66]. 
before the Act in Madras, 72 [s. 66]. 

whether takes limited or absolute estate, 45 [s. 43 (13B)], 159 [a. 168], 
161 [s. 170]. 

as a stridhana heir — 

Madras school, 147 [s. 152], 

Mayukha, 143 [s. 161]. 

Mitakshara, 140 [s. 147]. 

Mithila, 149 [s. 153]. 



702 


IJIDEX. 


Daughter’s daughter— con/rf. 

maintenance of, 60G [s. o-17]. 

whether take ptr stirpes or per capita, -4 [s. 32], 155 [a. 160]. 

as tenants in common or as joint tenants, 155 [s. 159]. 

Daughter's daughter's son — 

as a bandhn, Mitakshara, 49 [s. 46], 55 [s. 47]. 

Daughter’s daughter’s son’s son — 

w hether a bandhn, 55-56 [s. 47]. 

Daughter’s husband — 

as a slridkana, heir under Dayabhaga, 152 [s. 155], 153 [s. 157], 

Daughter’s son— 

(TH an heir to his grandfather, Mit., 42 [s. 43 (6) ], S2 [s. 72 (8)] ; Day., 95 [s. 88 (6)], 
survivorship among daughter’s sons, 23 [s. 31], 42 [s. 43 (6)J, 245 [s. 223 {2)]. 
whether take per capita or per stirpes, 42 [a. 43 (6) ]. 
as an heir to stridkana — 

Dayabhaga, 153 [s. 155], 153 [s. 157]. 

Jladra-s school, 147 [s, 152]. 

Mayukha, 143-145 [s. 151]. 

■ Jlitakshara, 140 [s. 147]. 

Mithila school, 149 [s. 153]. 

whether take per stirpes or per capita, 24 (s. 32], 155 [s. 160], 
whether take as tenants in common or as joint tenants, 155 [s. 159]. 

Daughter’s son’s son— 

as a bandhu, Jtitakshara, 48 [s. 46], 66 [s. 54 (2)]. 
as an heir, Dayabhaga, 95 [s. 88 (6) ]. 

Daughter’s son’s son’s son— 

whether a bandhu, 55-56 [s. 47]. 

D aughte r-ln -1 aw — 

maintenance of, 605 [s. 544], 618 [s. 564], 

Dayabhaga — See Dayabhaga School. 

distinguishing features of Dayabhaga, joint fami] 3 ', 336 [s. 272], 

inheritance, distinction between Mitakshara and Dayabhaga sj’stems, 99 [s. 95], 
principal work of authority in Bengal, 11 [s. 11], 

Dayabhaga School- 

ancestral property according to, 337 [s. 276]. 

co-heirs who take as tenants in-common and those who take as joint tenants, 23 
[s. 31 (2)]. 
debts, 388 [s. 302], 

difference from the Mitakshara school, 11 [s. 11], 18 [s. 22], 18 [s. 24], 23 [s. 31], 28 
[s. 36], 99 [s. 95], 100 [s. 96], 119 [s. 121], 433 [s. 347]. 
female heirs, 76 [s. 61], 
inheritance of males, 88-98 [ss. 78-94], 
partition, 433-439 [ss. 346-355]. 

siridhana, according to, 117 [s. 120], 151-154 [ss. 154-157]. 

distinction between Mitakshara and Daj^abhaga, 119 [s. 121], 
succes.sion to, 117 [s. 120], 151-154 [s.s. 154-157]. 
unchastity of female heirs wbether a bar to succession to males, 100 [s. 96 (2)]. 
works of authority in, 11 [s. 11]. 



INDEX. 


703 - 


Dayakrama Sangraha — 

a work of authority in Bengal, 12 [s. 11 (4)]. 

Dayatatwa— ' 

a work of authority in Bengal, 11-12 [s, 1! (4)]. 

Deafness — 

whether efiecta exclusion from inheritance, 102 [s. 98], 

share on partition, 105 [s. 106]. 

Debts— 

acknowlcclgmont of, by guardian, 589 [a. 531], 

by manager, 292-293 [a. 249]. 
by widow, 212 [s. 1 90], 

alienation by father for payment of hia debts, Hit., 369 [s. 295] ; Day., 3S8 [s. 302 ]. 

neither for legal necessity nor for antecedent debt, 376 [s.296]. 
by limited heir for paynieni of debts of last full orvner, 1S3 [s. 18IA 
(2) (iv)]. 

by manager for payment of family debts, 279 [s. 242]. 
by widow for paj'ment of debts incurred in business, 210 [.s. 194A]. 
antecedent debts, what arc, 369 [s. 295]. 

burden of proof, 371 [s. 295 (2)]. 
where proved in part only, 381 [s. 297], 
attachment of coparcenary interest for coparcener’s debts, 34,5 [s, 289]. 
nttacliment of coparcenary property for father’s debt.s, 357 [s, 294A]. 
avyavaharika debts, 383 [s. 298 (8)]. 
business, debts contracted for, 276 [s. 240]. 

coparceners, liability of undivided coparcenary interest for debts of, 345 [s. 289]. 
coparcenary property, liability of, for coparcener's debts, 345 [s. 289]. 
discharge for debts, manager’s power to give, 292 [s. 248A]. 

Dayabbaga, law of, 388 [s. 302]. 

execution proceedings, construction of, 366 [s. 294B (5)]. 

taken after father’s deatli, 368 [s. 294C]. 
family business, manager may contract debts for, 264 [s, 234], 
father’s debts, 344-388 [ss. 288-302], 

liability of son.s for, 347 [s. 290]. 

mortgage of family property' by father for payment of his debts, 369 [s. 295]. 
sale of family property by father for payment of bis debts, 369 [s. 295]. 
sale of family property in execution of decree against father, 356 [s. 294]. 
grandson’s and great-grandson’s liability' for grandfather's debts, 347 [s. 290], 350 
[s. 291]. 

heirs, liability of, for ancestor’s debts, Hitakshara. 344 [s. 2SS]. 

Dayabhaga, 388 [s. 302]. 

immoral or illegal purposes, debts incurred for, 382 [s. 298]. 

burden of proof, 366 [s, 294B (4)], 371 [s. 295 (2)]. 
joint family' property, liability of, for father’s debts, 347 [s, 290]. 
limitation and creditor’s suit, 354 [s. 293], 
maintenance, priority of debts over, 603 [s. 540], 624 [s. 570J. 
manager, power of, to contract debts for family, 276 [s. 240]. 

to give v.alid discharge for, 292 [s. 248A]. 
mohiinl, power of, to contract debts, 500 fs. 415 (1)]. 
partition, provision for family' debts on. 390 [s. 304]. 

debts contracted by father after, 347 [s. 290]. 
pious obligation of son, etc., for pay'ment of ancestor’s debts, 347 [s. 290J. 
relinquishment of debts, manager’s power of, 293 [s. 250]. 



704 


INDEX. 


Debts~cOT(/'i, 

sale of coparceners' interest in uiidivitled coparcenary prop^j^y for payment of 
hia debts, 345 [a. 289 J. 

fia!e of coparcenary property for fathor’a debts, 360 [s. 294J^ 304 [g. 294B (2)], 
300 [s. 294B (5)]. 

Hcparate property, liability of, f<»r debts, 344 [fl. 288], 
ishtihait, ijower of, to contract debts, 500 [s. 415 (1)] 
sotl’s liability for fathers rlubts, 347 [a. 290], 

after p,nlition, 349 [s. 290 (6)]. 

suit by creditor, a^cainst whom may be filed, 350-353 [s. 292 (1] to (4)]. 

suit for, contracted by father before partition, 350 fs. 290]. 

buroty, son’s liability for debts of father as, 382 [s. 298]. 

time. barred, 385 js. 299]. 

widow, debts contracted by, 211 [s. 195J. 

DebBtter property — Edowmenta. 
alienation of, 500 [s. 41.5]. 
meaning of, 497 [s. 413|. 

Decree— 

against benamidar, 053 [.s. (510]. 

father for his pctsonal debts, 345 fs. 289], 356 [s. 294], 
as inanagei, 301 [s. 254]. 

manager, when binding on coparceners, 299 [s. 253]. 
minor without .sanction of Court, 292 [s. 248], 
mohuxil, when binding on his successors, 502 [s. 417], 
shebait, when binding on his successors, 502 [s. 417]. 
widow, when binding on reversioners, 219 [s. 199]. 
mortgage, against father, 364 [s. 294B (2)]. 

Dedication — See Endowments. 

Devasthanam — 

distinction between devuslkanam and taath, 497 (s. 413]. 
meaning of, 497 [s. 413]. 

posses.sion and management of property dedicated to, 497 [s. 4i3]. 

Devesting of estate- 

executory bequest, 474 [s. 389]. 
on adoption by widow, 577-580 [ss. 501-506]. 

Dharam — 

gift or bequest to, 490 [s. 40.5], 031 [s. 582]. 

Disability — See Exclusion from inheritance, and Exclusion from Partition. 

Disciple— 

as heir, Nit., 74 [s. 57 ] ; Day., 97 [s. 91]. 

Diseases — 

incurable, whether effect exclusion from inheritance and from partition, 101 [s. 981, 
105 [s. 106]. 

Disinheritance — 

sons, wife, and other heirs, of, 449 [s. 368]. 

DiSgnalihCatlon — See Exclusion from Inheritance, and Exclusion from Partition. 
Divorce — 

custom, by, 531 [s. 441). 

Hindu law, under, 530 [s. 441]. 



INDEX. 


705 


Divorce— con/J, 

Indian Divorce Act (1869), 532 [s. 441], 

Indian Majority Act not applicable to Hindus in matters of, 3 [s. 4 (vi)], 687 [s. 516], 
Native Converts Marriage Dissolution Act (1866), 531-532 [s. 441], 

Douatlo Mortis causa — 

recognised in Hindu Law, 446 [s. 365]. 

Dravlda School — See Madias School. 

Dumbness — 

exclusion from inheritance, 101 [s. 98]. 

share on partition, 105 [s. 106]. 

Durga Pujah— 

endowment for performance of, 490 [s. 404]. 

Dwyamushyana— 

rights of inheritance of a, in natural and adoptive families, 563 [s. 486]. 

Election — 

reversioner, by, with regard to alienation by widow, 202 [s. 190]. 

Endowments- 

alienation of endowed property, 500 [s. 415]. 
charge in favour of, 494 [s. 408A]. 
creation of, 492 [s. 407]. 
ci/-pres, doctrine of, 510 [s. 421 (4)]. 

debts, power of shebait, or mohunl to contract, 500 [s. 415]. 
debuUaT property, alienation of, 500 [s. 415]. 

creditor, right of, against, 493 [s. 407A]. 
meaning of, 497 [s. 413]. 
decree against shebait or mohunt, 604 [a. 417], 
dedication, irrevocability of, 510 [s. 421 (4)], 

charge on estate, by way of, 493 [s. 408], 494 [s. 408.4], 
evidence of, 495 [s. 409]. 

may be complete or partial, 493 [s. 408], 494 [s. 408A]. 
rules of construction, 493-496 [ss. 407A-411], 
derasChanam and math, distinction between, 497 [s. 413]. 

management of property dedicated to, 497 [a. 413]. 
meaning of, 497 [s. 413]. 
dharam, gift or bequest to, 490 [s. 406]. 
dharmakarta, 499 [s. 414]. 
female manager, 498 [s. 413]. 
founder, rights of, 509 [s. 421]. 
gift or right of management, 508 [s. 420 (2)]. 
idol a juridical person, 498 [s. 413]. 
idol, bequest to, 495 [s. 410]. 

offerings made to, 610 [s. 422]. 
property held by, 498 [s. 413]. 
removal of, 608 [s. 420]. 
suit by or against, 498 [s. 413]. 
illusory, 493 [s. 407A]. 

income of endowed property, power of shebait or mohunt over, 499 [s. 414 (2)]. 
instances of, 490-491 [ss. 404-406]. 
limitation, suits relating to, 513 [s. 426]. 
lunacy of mohunt, 498 [s. 413]. 
of shebait, 498 [s. 413]. 

9 .^ 



706 


INDEX. 


Endowments— con<rf. 

math, meaning of, 497 [s. 413]. 
object of, 497 [s. 413]. 

possession and management of property dedicated to, 497 [a. 413], 
jiroperty held by, 497 [a. 413]. 
mohint, decree against, 604 [a. 417]. 

devolution of office of, 504 [a. 418], 
meaning of, 497 [a. 413]. 

offerings made to, by his followers, 510 [a. 422], 
office of, whether liable to partition, 505 [s. 418 (2)]. 
position of, 499 [a. 414]. 
removal of, 611 [a. 423]. 
light of, to sue, 497 [s. 413]. 
partial dedication, 494 [a. 408A]. 
perpetuities, rule against, 470 [a. 385]. 
private endowments. 512 [a. 424]. 

Eeligious Endowments Act 20 of 1863, 512 [a. 424]. 

remainder, bequest or gift in, to endowment, 497 [a. 412], 

removal of shebaiis and mohunls, 511 [a. 423]. 

sale by shebait or mohiint of right of management, 507 [s. 420 (1)]. 

scheme of management, 511 [a. 423]. 

shebait, decree against, 604 [s. 417]. 

benami purchase of debutter property, by, 499 [a. 414 (2)]. 

devolution of office of, 505 [a. 419], 609 [s. 421]. 

meaning of, 497 fa. 413]. 

partition of office of, 506 [a. 419 (2)]. 

position of, 498 fs. 414], 

removal of, 511 [a. 423]. 

right of, to sue, 497 [a. 413]. 

right to nominate successor by will, 507 [a. 419 (3)]. 
subject-matter of endowment, 492 [a. 406]. 
superstitious uses, validity of endowments for, 490 [a. 404]. 

Transfer of Property Act, sec. 123, and endowments, 492 [s. 407]. 
transfer of right of management, 507 [s. 420]. 

Trusts Act 2 of 1882 whether applies to, 492 [s. 407], 
trustees, interposition of, whether necessary, 492 [a. 407], 
trustees, vesting of property in, 497 [s, 413], 
wall, endowments created by, 492 [a, 407 (1)]. 
worship in temple, right of, 507-508 [s. 425], 

fee for admission, 508 [a. 426], 

Eauitles— 

• on setting aside alienations, by a widow, 198 [a. 188], 

by a coparcener in Bombay and Madras, 323 (a. 268 (2)]. 

in Bengal and U. P., 325 [s. 269 (2)]. 

Escheat- 

maintenance, and, 605 [s. 544A]. 

when Crown takes by escheat, Mit., 74 [a. 59]; Day., 98 [s. 92]; Stridhana, 154 
[s. 158]. 

Estoppel- 

adoption and, 583 [a. 513]. 

• reversioner, to alienation by widow, of, 202 [a. 191], 206 [s. 192]. 



INDEX. 


707 


Exclusion from Inheritance 

after-born son of disqualified heir, 105 [a, 105]. 
blindness, 101 [a. 08], 

Caste Disabilities Ronioval Act, 1850, effect of, 101 [a. 97], 104 [s. 102]. 

caste, loss of, 101 [s. 97], 

conversion from Hinduism, 101 [s. 97]. 

deafness, 102 [a. 98]. 

disability arising after succession, 104 [s. 103]. 
disability does not exclude heir of disqualified person, 104 [a. 102], 
except whore heir is an adopted son, 104 [s. 102], 
disability only personal, 104 [s. 102]. 

disability, removal of, after succession has opened, 105 [s. 104], 

dumbness, 102 [s. 98]. 

effect of, 104 [ss. 101. 102], 105 [a. 105]. 

females, grounds on which they may be excluded from inheritance, 104 [s. 100], 

Hindu Inheritance (Removal of Disabilities) Act, 1928, 3 [s. 4]^ 102 [s. 98]. 

idiocy, 102 [s. 98]. 

lameneas, 102 [a. 98]. 

leprosy, 102 [s. 98]. 

lunacy, 102 [s. 98]. 

maintenance of disqualified heirs, 107 [s. 110]. 
mental defects, 102 [s. 98]. 

.murder J03[a 
physical defects and, 101 [s. 98]. 
religious order, adoption of, 107 [s. 111], 
removal of disability, 105 [a. 104]. 
subsequent diaability, effect of, 104 [s. 103]. 
unchaatity of female heirs and, 100 [s. 96]. 

Exclusion from joint family property — 

limitation against excluded member, 271 [s. 235 (3a)]. 
rights of excluded coparcener, 27 1 [s. 235 (3a)], 

Exclusion from partition — See Exclusion from inheritance, 
after-born son of disqualified coparcener, 106 [s. 109j. 
disabilities which, bring about, 105 [s. 106]. 

■ Hindu Inheritance (Removal of Disabilities) Act, 1928, 106 [s. 107 (2)]. 
lunacy at time of partition and, 106 [s. 107]. 
maintenance of disqualified coparceners, 107 [s. 110]. 
religious order, adoption of, and, 107 [s. 111], 
removal of disability, 106 [s. 108]. 

Executors— 

power of, to dispose of property, 458 [s. 376A]. 
probate, where necessary, 456 [s. 375]. 
vesting of estate in, 457 [s. 376]. 

Executory bequest — 

executory bequest, 474 [s. 389], 

Factum valet — 

adoption, and, 523 [s. 434]. 
marriage and, 522 [s. 434]. 

Family business — See Ancestral business, 
a heritable asset, 264 [s. 234]. 
debts contracted by manager for, 276 [s. 240]. 

by widow for, 210-212 £s8. 194A, 195]. 
enquiries as to necessity for loan, 276 [s. 240 (3)], 
joint familj’^ firm, characteristics of, 264 [s. 234], 
manager, powers of, 279 [s. 241]. 
minors, liability of, 264 [s. 234], 276 [s. 240]. 



708 


INDEX. 


Father- 

adoption, alienations by adoptive father pcrior to, 580 [a. 508], 

no bar to disposal of separate property by adoptive father by gift or will, 
572 [s. 498], 

right of father to give hia son in, 559 [s. 475]. 
adoptive father, whether entitled to inherit to adopted son, 570 [s. 495]. 
adult son, when father bound to maintain, 605 [s. 545], 
alienation by, of ancestral property — See Alienation, 
ancestral immoveable property, gift by father of, 250 [s. 226]. 
ancestral moveables, gift by father of, 250 [s. 225]. 

ancestral property, father’s interest in Mitakshara, 249-250 [ss. 224-225]. 

Daj'abhaga, 337 [s. 274]. 

as an heir to hia son, Mit., 43 [s. 43 (8)], 83 [s. 72 (10)] ; May., 87 [s. 77 (7)] ; 

■ Day., 95 [s. 88 (7)]. 

bequest by father of liis separate property to his son, 247 [s. 223 (5)]. 

of ancestral property by father, 449 [-s. 368]. 
change of religion by, and guardianship, 591 [s. 525]. 
compromise of suit by, 292 [a. 248]. 

decree against, as manager and res judicata, 301 [s. 254], 

gift by father of his separate property to his son, 247 [s. 223 (5)1. 

gift of joint family property in general, 440 [s. 357 (3)]. 

gift by father to his daughter is saudayiha, 137 [s. 143]. 

guardianship, right of father to, 588 [s. 518]. 

insolvency of, 317 [s. 265 (2)]. 

liability of sons for debts of, 344 [s. 288], 347 [s. 290]. 

maintenance of minor sons and unmarried daughters by, 605-606 [ss. ,‘>45-, 546], 
marriage, right of father to give daughter in, 520 [s. 433], 522 [.?. 434]. 
partition between the sons, right of father to effect, 407 [s .323]. 
partition, share on, between father and sons, 403 [s. 321 (1)]. 
by will, 408 [s. 324]. 

release by, of his interest in ancestral property, 249 [s. 224]. 
sale by father of jeint family property for pa3rment of his debts, 369 [.s. 205]. 
sale in execution of decree against father for his debts, 356 fs. 294J. 
separate property, power over, 243 [s. 222]. 
alridheina heir, as, 138-154 [ss. 145-157]. 
daughter’s sulka, 139 [s. 146]. 

Dayabhaga, 152 [a. 155], 153-154 [ss. 156, 157]. 

Madras school, 147 [s. 152 (3)]. 

Mayukha, 145 [s. 151 (III)]. 

Mitakshara, 140 [s. 147]. 

Father’s daughter’s son— >See Sister’s son. 

Father’s daughter’s daughter’s son — 

as a bandhu, Mitakshara, 66 [s. 54 (7)]. 

Father’s daughter’s son’s son— 

as a bandhu, Mitakshara, 66 [s. 64 (6)]. 

Father’s father — See Father, 

as an heir, Mit., 44 [a. 43 (13)], 84 [s. 72 (34)] ; May,, 87 [a. 77 (13)] ; Day., 96 [a. 88 



INDEX. 


709 


Father’s iBXher—cmiid. 

alienation by grandfather of joint family property for pay^®^^ debts. 369 

[a. 295], 

debts, liability of grandsons for grandfather’s, 348 [s. 290 (^)]- 

sale of joint family property in execution of decree against gi’^ndfather for his debts, 
356 [s. 294], 

Father’s father’s daughter’s son — 

as a bandhu Mitakshara, 67 [a. 54 (17)]. 

Father’s father’s daughter's daughter’s son — 

as a bandhu. Mitakshara, 67 [s. 54 (24)]. 

Father’s father’s daughter’s son’s sen — 

as a bandhu, Mitakshara, 67 [s. 54 (23)]. 

Father’s father's father — 

as an heir, Mit., 46 [s. 43 (18)], 85 [a. 72 (49)] ; Day., 96 [a. (19)]- 

Father’s father’s mother— 

as an heir, Mit., 46 [a. 43 (17)], 85 [a. 72 (48)] ; Day., 96 fa. (^9)]- 
estate taken by, in inherited property, 159-164 [ss. 168-171]. 

Father’s father’s sister’s son— 

as a bandhu, Mitakshara, 48 fs. 46 (4)], 68 [a. 54 (II 3)]. 
aa a aauinda^ Da-^abh.a^as 96 fa. 88 (24W 

Father’s father’s sister's son’s son — 

as a bandhu, Mitakshara, 68 [a. 54 (II 7)]. 

Father’s father’s son’s daughter’s son — 

as a bandhu, Mitakshara, 67 [a. 54 (20)]. 

Father’s father’s son’s daughter’s daughter’s son — 

aa a bandhu, Mitakshara, 67 [a. 54 (I 31)]. 

Father’s father’s son’s daughter’s son’s son — 

as a bandhu, Mitakshara, 67 [a. 51 (I 29)]. 

Father’s father’s son’s son’s daughter’s son— 

as a bandhu, Mitakshara, 67 [a. 54 (I 27)]. 

Father’s maternal grandfather— 

as a bandhu, Mitakshara, 68 [.a. 54 (TI 1)]. 

Father’s maternal grandfather's daughter’s son — 

as a bandhu, Mitakshara, 68 [a. 54 (II 5)]. 

Father’s maternal grandfather's son — 

as a bandhu, Mitakshara, 68 [a. 54 (II 2)]. 

Father's maternal grandfather’s son’s son — 

as a bandhu, Mitakshara, 68 [a. 54 (II 4)]. 

Father’s maternal grandfather’s son’s son’s son — 

as a bandhu, Mitakshara, 68 fa. .54 (II 8). 

Father’s maternal grandfather’s son’s daughter’s son— 

ns a bandhu, Mitakshara, 68 [a. 54 (II 10)]. 

Father’s maternal grandfather’s son’s son’s daughter’s 

as a bandhu, Mitakshara, 68 [a. 54 (II 20)]. 



710 


INDEX. 


Father’s maternal grandfather’s son’s son's son’s son — 

as a bandhu, Hitakshara, 68 [s. 54 (II 16)]. 

Father's maternal grandfather's daughter’s son's son— 

as a bandhu, Mitakshara, 68 (s. 54 (II 11)]. 

Father's maternal grandfather's son’s daughter's son’s soh— - 

as a bandhu, Hitakshara, 68 [s. 54 (II 21)]. 

Father’s maternal grandfather’s daughter’s daughter’s soh — 

as a band'nu, Hitakshara, 68 [s. 54 (II 12)]. 

Father’s maternal grandfather’s son’s daughter’s daughter’s son — 

as a bandhu, Hitakshara, 68 [s. 54 (II 24)]. 

Father’s maternal great-grandfather — 

as a bandhu, Hitakshara, 70A. 

Father’s maternal great great-grandfather — 

as a bandhu, Hitakshara, 70A. 

Father’s mother — 

as an heir to her grandson. Hit., 44 [s. 43 (12)], 83 [s. 72 (13)] > May., 87 [s. 77 (11)]; 
Day,, 96 [s, 88 (14)], 

whether takes a limited or an absolute estate, 159 fs. 168], 161 [s. 170]. 
as a stridhana heir, whether takes an absolute or a limited estate — 

in Bombay, 163 [s. 171]. 
in other provinces, 160 [s. 169]. 

partition, rights on, Hitakshara, 401 fs. 317]. 

Dayabhaga, 438 [s. 3.54]. 

suit for, whether is a neces.‘ary party to, 424 [s. 333 (2) (ii)]. 

Father's mother’s brother— 

as a bandhu, Hitakshara, 68 [s. 54 (II 2)]. 

Father’s mother’s brother’s son — 

as a bandhu, Hitakshara, 49 [s. 46 (4)], 68 [s. 54 (II 4)]. 

Father’s mother’s sister— 

as a stridhana heir to maiden’s property, in Bombay, 138 [s. 145]. 

Father’s mother’s sister’s son — 

as a bandhu, Hitakshara, 49 [s. 46 (4)], 68 [s. 54 (II 6)]. 

Father’s paternal uncle— 

as an heir, Hitakshara, 46 [s. 43 (19)] ; Dayabhaga, 96 [s. 88 (21)]. 

Father’s paternal uncle’s daughter’s son — 

as a sapinda, Dayabhaga, 96 [s. 88 (31)]. 

Father’s paternal uncle’s son — 

as an heir, Hitakshara, 46 [s. 43 (20)] ; Dayabhaga, 96 [s, 88 (22)]. 

Father's paternal uncle’s son’s daughter’s son — 

as a sapinda, Dayabhaga, 96 [s. 88 (32)]. 

Father’s paternaiL uncle’s son’s son — 

as an heir, Hitakshara, 46 [s. 43 (21)] ; Dayabhaga, 96 [s. 88 (23)]. 



INDEX. 


711 


Father’s sister— 

aa a stridhana heir to maiden’s property in Bombay, 133 [s. 145], 

-as an heir in Bombay, 72 fs. 56], 78 [a. 64 (2)]. 
in Madras, 72 [s. 56]. 

whether takes an absolute or limited interest in inherited property 

in Bombay, 161 [a. 170 (2)], 163 [a. 171]. 
in Madras, 159 [a. 168 (4)], 160 [s. 169]. 

Father’s sister’s daughter’s son — 

as a bandhn, Mitakshara, 67 [a. 54 {I 24)]. 

Father’s sister’s son — 

as a bandhu, Mitakshara, 48 [a. 46 (4)], 67 [a. 54 (I 17)]. 
as a sapinda, Dayabhaga, 96 [a. 88 (18)]. 

Father’s sister’s son’s son — 

as a bandhu, Mitakshara, 48 [a. 46 (4), 67 [a. 54 (I 23)]. 

Father’s son's daughter’s son— 

as a bandhu, Mitakshara, 66 [s. 54 (I 5)]. 

Father’s son’s daughter’s daughter's son — 

as a bandhu, Mitakshara, 66 [s. 54 (I 11)]. 

Father’s son’s daughter’s son’s son — 

aa a bandhu, Mitakshara, 66 [s. 54 ( I ft)]. 

Father’s Son's Son’s Son’s Son — 

as heir, Mitakshara 46 (a. 43). 

Fellow student — 

as heir, Mit., 74 [s. 57] ; Day., 97 [.s. 91]. 

Female Bandhus — 

Bombay, in, 72 [s. 56], 

Madras, in, 72 [s. 50], 

Female heirs — 

Benares and Mithila, in, 76 [s. 61A], 77 [s. 62]. 

* Bengal, in, 76 [s. 61]. 

Bombay, in, 77-81 [ss. 64-70]. 

daughters of collaterals, 81 [s. 70]. 
of descendants, 81 [s. 70]. 
half-sister, 79 [s. 66]. 
sister, 79 [s. 65]. 

widows of gotraja sapindas, 80 [s. 68]. 
of samanodakas, 81 [s. 69]. 

estate (limited or absolute) taken by, or succession to property inherited from — 
females, in Bombay, 163 [s. 171]. 

in other provinces, 160 [s. 169]. 
males, in Bombay, 161 [s. 170]. 

in other provinces, 1 59 [s. 168] 

Hindu Law of Inheritance (Amendment) Act, 1929, female heirs under, 76-79 
[ss. 61 A to 66]. 

Madras, in, 77 [a. 63]. 



712 


INDEX. 


Female lielrs— con(<l. 

Mitakshara school, under, 76 [s. 61A]. 

powers of, over inherited propert.y, 165-223 [ss. 174-2011- 

remedies against unauthorised acts of, 223-232 [ss. 202-211], 

unebastity of, how far affects exclusion from inheritance, 100 [s. 96], 139 [s. 139]. 

Firm — 

joint family, 264 [s. 2341. 

insolvency of, 322 [s. 266]. 

Fraud — 

adoption, consent to, when obtained by fraud, 567 [s. 491(2)]. 
bonami tran-sactions and fraud upon ereditors, 652 [s. 608]. 
gifts in fraud of creditors, 446 [s. 364]. 
marriage brought about by fraud, ,518 [s. 427 (2)]. 
partition, reopening of, on ground of fraud, 428 [s. 337]. 

Funeral Expenses— 

alienation by widow for, 179 [s. 181 A (1)]. 

by manager for, 279 [s. 242], 282 [s. 243]. 
provision for funeral ceremonies of widowed mother on partition, 390 [s. 304]. 
widow, of, w hether payable out of husband’s estate or out of her stridhana, 619 [s. 566]. 

Gains of Learning : gains of science — 

Hindu Gains of Learning Act, 1930, 258 fs. 231A]. 

whether separate or joint family property, 257 [s. 231], 258 [.s. 231 A]. 

Gandharva— 

one of the unapproved forms of marriage, 519 [s. 428]. 

Gift- 

acceptance, of, 441 [s. 358]. 

adopted son, gift to, where adoption invalid, 582 [s. 511]. 

adoption whether prevents disposal of separate property by adoptive father by 
gift, 572 [s. 498]. 

alternative and independent gifts, 474 [s. 388], 
ancestral property, gift by father, 250 [s. 225], 440 [s. 357 (3)]. 
burden of proof where gift made by a Hindu widow, 446 [s. 363]. 
class, gift to, 471 [s. 386], 
conditional, 478 [s. 396], 

construction of deeds of gift, 458-461 [ss. 377-378], 481-489 [ss. 399 to 401]. 

coparcenary interest, of, 303 [s. 258]. 

creditors, gift in fraud of, 446 [s. 364]. 

daughters, to, 136 [s. 143], 484 [s. 401]. 

defeasance, gift subject to, 474 [s. 389]. 

definition of, 440 [s. 366]. 

dharam, gift to, 490 [s. 405]. 

disposition in favour of unborn person subject to prior disposition, 469 [s. 384]. 

donatio mortis causa, 446 [s. 365]. 

estate unknown to Hindu law, 464 [a. 382], 

females, gift to, 484 [s. 401], 

gift over on failure of void prior gift, 473-474 [s. 387]. 
gift to a person whose adoption is invalid, 582 [s. 511] 

gift to niecQ (Brat) on the occasion of her marriage, 186 [s. 181B (2) (v) ]. 
gift to widow, daughters and other females, 136 [s. 143], 484 [s. 401], 



INDEX, 


713 


Q\iXr~~COTltd , 

gift to unborn persona, 443 [ss, 359, 360J. 
rule as modified by statute, 443 [s. 360]. 
rule of Hindu law, 443 [s. 359]. 

in cases governed by Hindu Disposition of Prope[>ty Xct, 443 [s. 360], 
469-476 [ss. 383-390]. 

gift to unborn person subject to prior interest, 469 [s. 384]. 

rule against perpetuity in regard to gift, 470 [a. 385J, 

when unborn person acquires vested interest on transfer for his benefit, 470 
[s. 385]. 

failure of prior disposition, 47.3, 474 [s. 387]. 

in cases governed by the Hindu Transfers and ^cta (Madras), 

443 [s. 360], 469-476 [as. 383-390]. 
grant of land made by the Crown, 445 [s. 362]. 
idol, gift to, 495 [a. 410]. 
immoral conditions, in, 478 [a. 396]. 
impartible estate, gift of, 441 [a. 357 (7)]. 
independent and alternative gifts, 474 [s. 388]. 
inherited property, gift by widow, of, 184 [s. 181B]. 

with consent of reversioners, 191 [s. 

lifo-mterest, reservation of, to donor, 445 [s. 361]. 

.nxaliH 

possession, delivery of, 441 [s. 3o8]. 

regii'tration, 442 [s. 358 (2)]. 

religious office, gift of, 508 [s. 420 (2)]. 

religious or charitable purposes, gift for, 490 [s. 405], 

reminder, gift by way of, 476 [s. 390]. 

repugnant condition, effect of, 445 [s. 362]. 

revocation of, 446 [s. 363]. 

rule against perpetuity in regard to, 470 [s. 385], 
rules common to gifts and wills, 462-489 [ss. 379-401]. 
separate or self-acquired property, gift of, 440 [s. 357 (1)], 
son, to, by father, 247 [s. 223 (5)], 250 [s. 225], 

Transfer of Property Act, 1882, 442 [s. 358 (2)]. 
trust, gift through the medium of, 446 [s. 366]. 
two or more persons, gift to, 482 [s. 400]. 

unborn persona, to— sub-head “ Gift to unborn persons." 

undivided coparcenary interest, gift of, Mitakshara, 303 [s. 25^]^ 323 [a. 267]. 

Dayabhaga, 341 [s. 28^^ 

widow, to, 484 [s. 401], 

writing not necessary, 441 [s. 358]. 

Gotra— 

females who enter the golra of a Hindu by marriage, 129 [s. ISq], 
marnage with a girl of the same gotra, validity of, 525 [s. 436 (i)p 

Gotraja saplnda— See Sapindas. 

adoption by a widow who has succeeded as a, 558 [s. 473]. 
definition of, 29 [s. 37]. 

widows of, as heirs in the Bombay Presidency, 80 [s. 08], 



714 


INDEX. 


Government- 

grant by, to a limited heir, 488 [a. 401 (4)]. 

payment of Government revenue, whether a legal necessity, 282 [s. 243], 

Grandchildren — 

maintenance of, 606 [a. 547], 

Granddaughter- — See Son’s daughter. Daughter’s daughter. 

Grandfather — See Father’s father. Mother’s father. 

Grandmother- — See Father’s mother. Mother’s mother. 

Grandson — ^See Son’s son, Daughter’s son. 

Great grandfather’s daughter's son— 

as a handhu, Mitakahara, 68 [s. 64 (II 3)]. 

Great grandfather’s son’s daughter’s son — 

as a handhu, Mitakshara, 68 [s. 64 (II 6)]. 

Great grandfather’s son’s son’s daughter’s son — 

as a handhu, Mitakshara, 68 [s. 54 (II 13)]. 

Great grandfather's daughter’s son’s son — 

as a handhu, Mitakshara, 68 [s. 54 (II 7)]. 

as a handhu in Bombay Presidency, 72 fs. 56]. 

Great grandfather’s son's daughter’s son’s son — 

as a handhu, Mitakshara, 68 [s. 64 (II 14)]. 

Great grandfather’s daughter’s daughter's son — 

as a handhu, Mitakahara, 68 [s. 64 (II 9)]. 

Great grandfather’s son’s daughter’s daughter’s son — 

as a handhu, Mitakshara, 68 [s. 54 (II 17)1. 

Great grandsons — See Son’s son’s sons. 

Great great grandfather— 

as a handhu, Mitakshara, 70A. 

Great great grandfather’s daughter’s son — 

as a sakulya, Dayahhaga, 93 [s. 84], 

Great great grandfather’s daughter’s son’s son — 

as a sakulya, Dayahhaga, 93 [s. 84], 

Great great grandfather’s daughter’s son’s son’s son— 

as a sakulya, Dayahhaga, 93 [s. 84], 

Guardianship — 

adopted son, guardianship, of, 590 [s. 621], 
age of majority, 587 [s. 516], 
aiicnation by guardian — See Alienation, 
caste, loss of, and, 59i [s. 524], 
conversion of father and, 591 [s. 525]. 

mother and, 591 [a. 626J. 
ward and, 592 £s. 527]. 



INDEX. 


715 


Guardlansblp— conJd. 

de facto and ad hoc guardian, 600 [s. 538]. 

father, right of, to guardianship of minor son, 588 [s. 518]. 

to appoint guardian by will, 596 [s. 532]. 

Guardian and Wards Act of 1890, 3 [s. 4 (vii)], 598-600 [sa. 536-537]. 
guardian appointed by the Court, 598-600 [ss. 633-537], 
alienations by, 599 [a. 536]. 
guardian de facto and ad hoc, 600 [s. 538]. 

guardian whether can bind minor by personal covenant, 594 [a. 529 (1)]. 
illegitimate children, guardianship of, 590 [s. 522], 
immoveable property, contract for purchase of, 594 [s. 529 (2)]. 

Majority Act 9 of 1875, 587 [s. 516]. 
marriage, guardian for, 520 [.s. 433], 522 [s. 434]. 
minor, capacity of, to act as guardian, 588 [s. 518]. 
mother, right of, to guardianship of minor son, 589 [s. 518]. 
natural guardians, 588-596 [ss. 518-531], 

acknowledgment of debt by, 596 [s. 531]. 

alienations by, 592 [a. 528]. 

compromise by, 596 [s. 630]. 

contracts, power to enter into, 594 [s. 529]. 

efleot of change of religion by father, 591 [s. 525]. 

by mother, 591 [s. 626]. 
by ward, 592 [s. 627]. 

loss of caste, 591 [s. 524]. 
remarriage of mother, 590 [s. 623]. 
person, of, 588 [s. 518], 592 [s, 527], 596 [s. 532], 598 [s. 534]. 
property, of, 588 [s. 518], 589 [s. 619], 596 [s. 532], 598 [s. 635], 699 [s. 637]. 
recovery of custody of minor, procedure for, 601 [s. 539]. 
testamentary guardians, 596 [s. 632]. 
alienation by, 596 [s. 532], 

undivided coparcenary interest of minor and guardianship, 589 [s. 619]. 
wife, of, 532 [s. 443], 588 [s. 518], 

Halai Memons— 

Hindu law, how far applies to, 633 [s. 582], 

of Morvi, 633 [s. 582], 
of Porbunder, 633 [s. 582], 


Half-brother — 

as an heir, Mitakshara, 43 [a. 43 (9)], 83 [s. 72 (11)] ; Dayabhaga, 96 [s. 88 (9)] ; 
Mayukha, 43 [s. 43 (9)], 87 [s. 77 (13)]. 

Half-sister — 

as an heir, in Bombay, 45 [s. 43 (13C) (2)], 79 [s, 66], 83 [s, 72 (16)], 87 [s. 77]. 
in Madras, 72 [s. 66], 


Heirs — 

co-heirs, when take as tenants-in-common, 23 [s. 31]. 

as joint tenants, 23 [s. 31]. 
per capita, 24 [s. 32]. 
per stirpes, 24 [s. 32]. 



716 


INDEX. 


Heirs — conld. 

debts, liability of heirs for, 344 [s. 288], 
female heirs, 76-81 [as. 61-70 ] — See Eemalo heirs, 
heirs according to — 

Bombay school, 82-87 [ss. 71-77], 

Dayabhaga, 88-98 [sa. 78-94]. 

Mitakshara, 35-76 [ss. 43-60]. 

Hermits— 

succession to, 74 [s. 58]. 

Hindu Law — 

converts to Hinduism, application to, 5 [s. 6]. 

Cutclii Memons, 633 [s. 5S2]. 

enactments by -which Hindu law is applied to Hindus, 4-5 [s. 5]. 
extent of application of, 2 [s. 3]. 

Khojas, 630 [s. 582]. 

legislation modifying or suspending, 2-4 [a. 4], 

Native Christians, 7 [s. 7 (2)]. 
persons to ivhom Hindu law applies, 5 [s. 6]. 
persons to -n-hom Hindu law does not apply, 7 [s. 7j. 
power of Court to administer, how derived, 2 [s. 2]. 
sources of — .See Sources of Hindu law. 

Hinduism — 

conversion from, 7 [s. 7], 630-634 [ss. 582-583]. 
conversion to, 6 [s. 6]. 

renunciation of, and exclusion from inheritance, 101 [s. 97]. 

Hindu Married Women’s Right to separate Residence and Maintenance 
Act, 1946, 684 [App. XIII]. 

grounds for separate residence and maintenance, 684 [App. XIIIj. 

Hindu WUlS Act- 

application of, 451 [s. 369], 452 [s. 3C9A], 457 [s. 376]. 
repeal and re-enactment of, 451 [s. 369], 457 [s. 376]. 

Hindu Women’s Property Act — 

heritable property, 26 [s. 35]. 

Hnsband — See AVife. 

bequest to wife, 136 [s. 143]. 

conversion of husband, and dissolution of marriage, 531 [s. 441 (3)]. 

eSect of, on wife's right of maintenance, 612 [s. 557 J. 
gift to -wife, 136 [s. 143]. 
maintenance of wife, 603 [s. 542]. 
marital duties, 532 [s. 442]. 
saudayika, husband’s power over, 136 [s. 143]. 

Succession to stridliana — 

Dayabhaga, 139 [s. 146 (2)], 152 [s. 155], 163 [s. 156], 153 [s. 157]. 

Madras school, 147 [s. 152]. 

Mayukha, 143 [s. 151]. 

Mitakshara, 140 [s. 147]. 
sulka, succession to, 139 [s. 146]. 

Idiocy— 

-ivhether effects exclusion from inheritance, 101 [a. 98]. 

share on partition, 105 [a. 1061. 

Idol- 

bequest to, 495 [s. 410]. 

endowment torf establishment of, 490 [s. 404]. 

gift to, 495 [s. 410]. 



INDEX. 


717 


Idol — tonld. 

idol a juridical poison, 497 [s. 413]. 
offerings to, 510 [s. 422], 

partition and provision for worship of, 389 [s. 303]. 
property held by, 498 [a. 413]. 
suit by or against, 498 [a. 413]. 

Illegitimate children— (See Illegitimate son. Illegitimate daughter, 

Christian father and Hindu mother, of, 6 [s, 6]. 
guardianship of, 590 [s. 522]. 

Hindu father and Christian or Mahomedan mother, of, 7 [s. 7 ( 1 )]. 

Hindu parents, of, 5 [s. 6 (ii)]. 

inheritance, rights of, 36 [s. 43 (4)], 42 [s. 43 (5)]. 

maintenance of, 607 [s. 551], 609 [s. 552]. 

Illegitimate daughter- 

inheritance to father, right of, 42 [s. 43 (5)]. 

mother, right of, 155 [s. 163]. 

Illegitimate son — See. Illegitimate children, 
maintenance, 607 [s. 551]. 
of the three higher classes — 

inheritance, rights of, 36 [s. 43 (4)], 
maintenance, rights of, 36 [s. 43 (4)], €07 [s. 551]. 
partition, right to a share on, 397 [s. 312], 435 [s. 350]. 
of Sudras — 

inheritance, rights of, 36 fs. 43 (4)]. 

partition, whether entitled to, 397 [s. 312], 435 [s. 350], fi07 [s. 551]. 

Immoveable property— 

damdupat, rule of, and lo.ms secured by mortgage of, 643 [s. gngj. 

gift of, and Transfer of Property Act, 442 [s. 358 (2)]. 

gift of ancestral, by father to near relations, 303 [s. 258], 32^ 267]. 

guardian’s contract for purchase of, 594 [s. 529 (2)]. 

limited heir, alienation by, of, 177 [s. 178]. 

parties to suits relating to, 293 [s. 251]. 

purchase of, by widow, from savings of income of inherited proj,erty, 172[s. 177 (3)]. 
recovery of ancestral, lost to the family, 259 [s. 232], 

stridhana, gift or bequest of immoveable property by husban,! to wife how far, 125 
[s. 126], 1.37 1.3. 143 (1)]. 

immoveable property purchased with, 132 fs. 134]. 
trusts of, how created, 446 [s. 366 (1) (i)]. 

Impartible property- 

accretion to, 636 fs. 586], 

alienation of, 637 [s. 588], 

bequest of, 451 [s. 368 (2) (iv)]. 

coparcenary in, whether there is any, 636 [s. 587], 

custom, by, 035 [s. 585]. 

gift of, 441 [s. 357 (7)]. 

instances of, 035 [s. 584]. 

maintenance, and, 605 [s. 545], 63/ fs, 589]. 

meaning of, 635 [s. 584]. 

succession to, 639-642 [ss. 590-595], 

Infant — See Minor. 



718 


INDEX. 


Inberltance — See Succession to males. Succession to females, Stiidhana. 
adopted son, rights of, 508 [s. 494 (2)1. 

after-born heir, when may affect estate vested in another, 20 [g. 28]. 
alteration of course of succession as known to Hindu law', 464 [s. 382], 

Caste Disabilities Removal Act, 1850, 2 [s. 4 (1)], 101 [s. 97], 591 [s, 524], 
co-heirs, whether take as joint tenants or as tenants in common, 23 [s. 31]. 
conversion, right of inheritance whether lost by, 2 [a. 4 (i)], 

Dayabhaga law of— .See Succession to males. 

devesting of, 20 [s. 28 (2)]. 

de%'olution of property, modes of, 18 fs. 24], 

difference between Jlitakshara and Dayabhaga, 18 [ss. 22, 24]^ 29 [s. 36], 99 [.s. 95]. 

divided son, rights of, 396 [s. 310], 429 [s. 341]. 

estate inconsistent with general law of inheritance, 464 [s. 382]. 

exclusion from — See Exclusion from inheritance. 

female heirs, 19 [s. 25], 76-81 [ss. 61-70] — See Female heirs. 

females succession to — See Succession to female, 

fresh stock of descent, what is a, 20 [s. 27]. 

general principles of, 18-24 [ss. 21-32], 

heritable property, Mitakshara, 26 [s. 35] ; Dayabhaga, 88 [s. 78], 

Hindu Inheritance (Removal of Disabilities) Act, 1928, 3 [s. 4]^ ipi [g. 98], 106[s. 107], 
Hindu Law of Inheritance (Amendment) Act, 1929 — See Acts, 
joint tenants, when heirs take as, 23 [s. 31], 
males, inheritance to — See Succession to males. 

Mitakshara law of — See Succession to males, 
partition whether destroys rights of, 429 [s. 341], 

per capita and per stirpes, principle of succession, application of, 24 [s. 32]. 
property descendible to heirs, Mit., 18 [s. 24], 25 [s. 34]; Day.,, 88 [s. 78]. 
propinquity as the governing factor in Mitakshara law of, 28 [s. 36]. 
representation, doctrine of, 21 [s. 29], 
spes sticcessionis, 22 [s. 30], 

spiritual benefit, as governing factor in Dayabhaga law of, 88, 89 [ss. 79-80], 
systems of, 18 [ss. 22-23]. 

tenants-in-common, when heirs take as, 23 [s. 31], 

unchastity of female heirs, how far affects inheritance, 100 [s. 96], 134 [a. 139], 
vesting of, whether can remain in abeyance, 20 [s. 28]. 

Insolvency — 

coparcener, of, and survivorship, 255 [s. 229 (2) (iii)]. 
manager, father and other coparceners, of, 316 [s. 265], 
minor member of joint family firm, of, 322 [s. 266], 

Interest — See Damdupat. 

rate of, and legal necessity, 286 [s, 244], 

Jains— 

adopted son, share of, 660 [s. 625], 
adoption among, 668-660 [ss. 617-626]. 

age of boy adopted, 658 [s. 620]. 

ceremonies of, 660 [s, 624]. 

datta homam, necessity of, 665 [s. 488 (3)]. 

daughter’s son, of, 659 [s. 622], 

orphan, of, 669 [s. 621], 

sister’s son, of, 659 [s. 623], 

widow, by, 658 [s. 618], 

second adoption, 668 [ 3 . 619]. 



INDEX. 


719 


Jains — conid, 

law relating to, 6 fs. 61, 666 [s. 613]. 

in Bombay, 667 [s, 614]. 
of succession, 667 [s. 615], 
atridhana, succession to, 658 [s. 616A]. 
succession among, 657 [s. 616]. 
tenets of, 655 [s. 612], 

widow, interest of. in husb.and’s estate, 169 [s. 168], 657 [s. 616]. 

Jati Valshnava — 

application of Hindu Law to members of the sect, 7 [s. 6]. 

Jats— 

succession among reversioners, 165 [s. 176]. 

Jlmuta Valiana~- 

author of Dayabbaga, 11 [a. 11 (3)]. 

Joint family — See Coparceners, Coparcenary, Coparcenary property. 

Joint family business — See Ancestral business. 

Joint family property — See Coparcenary property. 

Joint-tenants — 

daughter’s sons inheriting to their maternal grandfather, case of, 261 [s. 223 (2)]. 
heirs taking as, 23 .[s. 31]. 

Judicial decisions— 

as a source of law, 10 [s. 10]. 

Kanyadana— 

daughter given in marriage, 536 [s. 447]. 

Karta — See Manager. 

manager of joint family, 273 [s. 236]. 

Katyayana — 

stridhana according to, 109 [s. 113 (3)], 

Kayastbas — 

whether they are Sudras, 1 [s. 1], 

Khojas— 

application of Hindu law to, 630 [s. 682], 
maintenance of Khoja widow, 632 [s. 582]. 
partition, 630 [s. 582 (2)]. 

principle of survivorship, how far applies to, 630 [s. 582 (2)]. 

Shariat Act, 1937, subject to the provisions of, 630-634 [ss. 682-583], 
succession among, how far governed by Hindu law, 630 [s. 682], 
theory of joint Hindu family, how far applies to, 630 [s. 682 (2]]. 
wills of, 630 [s. 582], 

Krltima adoption — 

peculiar features of, 585 [s. 515]. 

Kshatrlyas — 

one of the four Hindu castes, 1 £s. 1], 

Lameness— 

Whether effects exclusion from inheritance, 102 [s. 98]. 

share on partition, 105 [s. 1061. 

Legal necessity— ySee Alienation. 



720 


INDEX. 


legitimacy — 

presumption as to, 529 [s. 438]. 

Leprosy— 

■whether effects exclusion from inheritance, 102 [s. 98], 

slinr© on partition, 105 fs. 106J. 

Letters of administration— 

when necessary, 456 [s. 375], 

Life-estate — 

creation of, by will or deed of gift, 464 [s. 381]. 
endowment to take effect after a, validity of, 497 [s. 412]. 

Limitation — [Xote : I.L.A. denotes Indian Limitation Act, 1908], 

acknowledgment of debt by guardian, [I.L.A. s. 21 (1)], 596 [s. 531], 
manager. [I.L.A. s. 21 <3)], 292 [s. 249]. 
widow, [I.L.A. s. 21 (2)], 212 [s. l96]. 
adopted son, suit for posse.ssion by, [I.L.A. Art. 144], 681 [s. 509]. 
adoption, suit to declare the samo valid or invalid, [I.L.A. Art. if®, 119], 535 [s. 514], 
abenation, suit to set aside, "when the same is made by — ■ 

father, in respect of ancestral property, [I.L.A. Art. 126], Sii'f [®- 271]. 
guardian, [I.L.A. Art. 44], 594 [s. 528]. 

mohunt, [I.L.A. s. 10 and Arts. 48B, 134A, B & C], 513-510 [s. 426 (1) (2)]. 
shebait, [I.L.A. s. 10 and Arts. 48B, 134A, B & C], 513-516 [s. 426 (1) (2)]. 
alienation by widow, and declaratory suit that same is void beyond her lifetime, 
[I.L.A. Art. 125], 228 [.s. 208]. 

and suit bv an adopted son ior possession. '[’i.’L.A. Art. ’iWj, 
581 [s.'seo]. 

and suit by reversioners for possession, [I.L.A. Art. 141], 229 
[s. 209]. 

Doparceoor and exclusion from coparcenary, [I.L.A. Art. 127], 271 [s. 235 (3a)], 423 
[8. 333 (1)]. 

creditor’s suit, 354 [s. 293 (1), (2), (3)]. 

declaratory suit against widow, [I.L.A. Art. 125], 228 [s. 208], 
maintenance, [I.L.A. Arts. 128, 129], 629 [s. 580 (1)]. 
parties, addition of new, [I.L.A. s. 22], 298 [s. 252]. 

reversioner’s suit for possession on widow’s death, [I.L.A. Arts. 141, 144], 222 
[s. 201], 229 [s. 209], 

■widow, adverse possession against, [I.L.A. Art. 141], 222 [s. 261]. 

adverse possession by, against reversioners, [I.L.A. Art. 144], 230 [s. 211]. 
Limited Belrs — >See Widow, IVidow’s estate and Reversioners. 

Llngayata — 

application of Hindu Law to, 6. 
are sudras, 6 [a. 6]. 

Lunacy — 

inheritance, whether lunacy effects exclusion from, 102 [s. 98]. 
marriage of a lunatic, 518 [s. 427]. 

math, head of, whether forfeits his position by reason of, 497 [s- 413]. 
partition, whether lunacy effects exclusion from, 106 [s. 107]. 
shebait, whether forfeits his position by reason of, 497 [s. 413]. 

Madras School — 

a sub-school of Mitakshara school, 12 [s. 12 (1)]. 
female handhus according to, 72 [s. 56J. 

heirs according to, 77 [s. 63]. 
stridhana acco^-ding to, 116 [s. 118]. 

succession to, according to, 147 [s. 162]. 
works supplementing Mitakshara recognized as authoritative by, 12 [s. 12 (1)]. 



INDEX. 


"721 


Maharashtra School— Sec Bombay school. 

Mahomedanlsm— 

conversion to, 8 fs. 7 (4) ], 630 [s. 582]. 

how far aflecta the right to give in adoption, 559 [s. 478], 
how far effects a dissolution of joint family, 427 [s. 334]. 

Maiden — 

presents from bridegroom, 138 [s. 145 (2)]. 
stridhana, mniden’s property how far, 133 [s. 137]. 

power to alienate, 136 [s. 142], 
succession to maiden’s property. 138 [s. 145]. 

Maintenance — 

amount of, for widow, 619 [s. 566], 
for others, 621 [s. 567]. 

whether may be increased or decreased, 621 [s. 568]. 
arrears, of, when Court may award, 628 [a. 579 (2)]. 
attachment of right to arrears of and future, 628 [s. 578]. 
avaruddha stree, of, 609 [s. 553]. 
caste, loss of, whether affects right of, 619 [s. 565]. 
charge on property, whether maintenance is, 622 [s. 569]. 

effect of agreement of decree creating, 622 [s. 569]. 
effect of will creating, 623 [s. 569]. 

Transfer of Property Act, s. 39, provision of, 623 [s. 569]. 
concubines, of, 609 [s. 553]. 
coparceners and their families, of, 604 [s. 543]. 
daughters, legitimate, of, 626 [s. 574]. 

lEegitimate, of, 609 [s. 552]. 
daughter-in-law, of, 605 [s. 544], 618 [s. 564 J. 
debts payable before maintenance, 603 [s. 540], 623 [s, 570]. 
decree for maintenance, execution of, 629 [s. 581]. 

devisees, right of maintenance when may be enforced against, 625 [s. 571]. 
disqualified heirs, of, 104 [s. 110], 607 [s. 550]. 

donees, right of maintenance when may be enforced against, 625 [s. 571]. 
escheat and right of maintenance, 605 [s. 544A]. 
father, of, 606 [s. 548]. 

female members of joint Hindu family, of, 60 1 [s. 549 J. 
future, attachment of right to, 628 [s. 579]. 
grandchildren, of, 606 [s. 547]. 
heirs, liability of, for, 604 [s. 544], 

husband, conversion of, and wife’s right of maintenance, 612 [s. 557 J. 
illegitimate sons, of, 607 [s. 551]. 

daughters, of, 609 [s. 552], ^ 

legal obligation to maintain, extent of, 603-605 [ss. 542-544 J. 

liability for maintenance (i) dependent on, and (ii) independent of, the possession of 
property, 603-605 [ss. 541-544]. 
limitation for suit for, 629 [s. 580]. 

Us pendens and maintenance, 625 [s. 572]. 
manager, liability of, 604 [s. 543]. , 
moral obligation to maintain, 604 [s. 644], 
mother, of, 606 [a. 548]. 
mother-in-law, of, 604 [s. 544], 



722 


INDEX. 


Maintenance— con/rf. 

parents of, 606 [s. 548], 

partition and provision for maintenance, 390 [s. 304], 
personal liability for, 603-605 [ss, 542-544], 
persons entitled to maintenance, 605-619 [ss. 545-565], 
sister, of, 604 [s, 544], 
sister-in-law, of, 604 [s- 544], 
sons, legitimate, of, 605 [s, 545], 
illegitimate, of, 607 [s, 551]. 
step-mother, of, 604 [s, 544], 

stridhana, whether arrears of maintenance are, 128 [s. 129]. 

property given in lieu of maintenance is, 128 [s. 129], 
suit for, 628 [s, 579], 

transfer of property for payment of debts, and, 623 [s, 570], 

of property pending suit for maintenance, 625 [s, 572], 
of right of maintenance, 628 [a, 577], 
widow, of, 613-618 [ss. 559-563], 

widow, of, on devesting of inheritance on adoption, 579 [s, 505], 
wife, of, 610-612 [ss. 554-558], 

win, disposal of property by, and right of maintenance, 449 [s. 368], 622 [a. 669], 

Majority — 

adoption, 536 [s. 450], 
age of, 587 [s. 516], 

Indian Majority Act 9 of 1875, 3 [a. 4 (vi)], 587 [a. 516], 
marriage, 518 [a. 427], 

Malik— 

gift to a female as, 486 [s. 401 (3)]. 

Manager — 

account, liability to, on partition, 274-275 [s. 238], 
during union, 275 [a. 239], 
acknowledgment of debt by, 292 [s. 249], 
alienation of joint family property by — See Alienation, 
arbitration, power to refer to, 292 [a. 247], 
business, joint family, 264 [a. 234], 276-279 [sa, 240, 241], 
new, 266, 269 [a. 234 (2) (4)], 278 [s. 240 (5)]. 
compromise by, 292 [s. 248], 
contribution from coparceners, 277 [a. 240 (4) ]. 

debts contracted by, whether take precedence over claim for maintenance, 623 [a. 570], 
debts, power to contract, 276 [a. 240], 
revival of, 292 [a. 249], 

decree against, how far binding on other co-parceners, 299 [a. 253 J. 

decree against, in foreclosure suit, 294 [a. 251 (1) ill. (2)]. 

discharge for debts, by, 292 [a. 248A]. 

female manager of a religious endowment. 497 [a. 413], 

gift by, of ancestral immoveable property, 250 [a. 226], 

income, power over, 274 [s. 237], 

joint family business, conduct of, 264 [a. 234], 276 [a. 240], 279 [a. 241], 
karla is manager of j oint Hindu family, 273 [a. 236], ' 
limitation, period of, and suit by manager, 298 [a. 252], 
mortgage by, of joint family property, 279 [a. 242], 
necessities of the family, what are, 282 [s. 243], 



INDEX. 


723 


Manager — amtd. 

parties to suit, 293 [s. 251J. 

powers of, Mitakshara law, 273-281 [ss. 236-242], 

Dayabhaga law, 341 [s. 283]. 

promissory note passed by, parties to suit on, 277 [s. 240 (4)]. 

relinquishment of debt, by, 293 [s. 250]. 

revival of debt, 292 [s. 249]. 

sale by, of joint family property, 279 [s. 242]. 

suits, parties to, 293 [s. 251]. 

who may bo, 273 [s. 236]. 

Manu — 

code or institutes of, 9 [s. 8 (2) (i)]. 
stridhana according to, 109 [s. 113 (1)]. 

Marathas— 

belong to what caste, 1 [s. 1]. 

Marriage — 

adopted son, whether can marry in his natural family, 569 [a. 494 (3)]. 
agreement enabling wife to avoid marriage, 532 [s. 442 (1)]. 
anuloma marriage, 624 [s. 435 (3)]. 
approved forms of marriage — 
a4ura, 519 [s. 428]. 
brahma, 519 [s. 428]. 
asura form of marriage, 519 [s. 428]. 
betrothal, 629 [s. 437 (2)]. 
brahma form of marriage, 519 [s. 428]. 
caste, identity of, 524 [s. 435]. 
ceremonies, 628 [s. 437], 

Child Marriage Kestraint Act, 1929, 518 [s. 427], 679 [App. IX]. 

conjugal rights, restitution of, 633 [s. 444]. 

consent of guardian, maixiage without, 522 [s. 434]. 

contract, marriage whether, 518 [s. 427 (1)]. 

conversion and dissolution of marriage, 631 [s. 441 (2) and (3)]. 

converts to Hinduism regarded as sudras for purposes of, 523 [a. 435 (2)]. 

Cutchi Memon women, marriage of, deemed to be in approved form, 620 [s. 429], 
632 [3. 682]. 

daughter’s, after suit for partition, 390 [s. 304], 
while family is joint, 630 [s. 440]. 
dissolution of, by Court under Act 21 of 1866, 531 [s. 441 (3)]. 

change of religion, whether operates as, 531 [s. 441 (2)]. 
loss of caste, whether operates as, 531 [s. 441 (2)]. 
divorce, 630 [s. 441]. 

Divorce Act 4 of 1869, provisions of, 532 [s. 441]. 

expenses of, 390 [s. 304 (2)J, 630 [s. 440]. 

factum valet, doctrine of, 523 [s. 434 J. 

father, right of, to give daughter in marriage, 522 [s. 433]. 

force or fraud, marriage brought about by, 518 [s. 427 (2)]. 

forms of, 619 [s. 428]. 

giving in marriage, 520 [s. 433]. 

guardians for marriage, 520 [s. 433], 622 [s. 434]. 

husband’s duty to wife, 632 [s, 442 (2)]. 



724 


INDEX. 


Marriage— coTiJd. 

injunction to prevent a marriage. 522 [s. 434 (2)]. 
lunatic, marriage of, 518 [s. 427 (1)]. 

^Majority Act whether applies to Hindus in matter of, 3 [s. 4 (vi)], 520 [s. 433J. 

male members, of. 390 [s. 304 (2)], 530 [s. 440]. 

male minor, of, 521 [s. 433 <2)]. 

marriage expenses, 390 [s. 304 (2)], 530 [s. 440]. 

when a legal necessity, 186 [s. 181B (iv)], 2S2 [s. 243 (c)]. 
minor, marriage of, 518 [s. 427], .520 [s. 433], 622 [s. 434]. 
minor widows, remarriage of, 521 [s. 433]. 
mixed marriages, 524 [s. 435]. 

mother, right of, to give her daughter in, 521 [s. 433], 522 [s. 434]. 

partition, provision for marriage expenses of unmarried daughters on, 390 [s. 304] (2). 

suit for, females entitled to provision for marriage expenses M'hether 
necessary parties to. 424 [s. 333 (2) (iv)]. 

Presumption as to form of marriage, 520 [s. 429]. 
as to legality of marriage, 529 [s. 438]. 
as to legitimacy, 529 [s. 438]. 
as to performance of ceremonies, 529 (s. 438]. 
prohibited degrees of relationship, 525 [s. 436]. 
questions of, decided according to Hindu law, 2 [s. 3 (2)] 
remarriage of widows, 520 [s. 432J. 

Special Marriage Act, 529 [s. 439]. 
svJka, what is, 125 [s, 126], 519 [s. 428]. 
unapproved forms of marriage — 
as lira, 519 [s. 428]. 
gavdharva, 519 [s. 428]. 
who may give in marriage, 520 [s. 433]. 
widows, remarriage of, 520 fs. 432]. 
wife's duty to husband, 532 [s. 442 (1)]. 
wiU, whether revoked by marriage of maker, 453 [s. 370 (3)]. 
wives, number of, permissible under Hindu law, 520 [s. 430]. 
woman can have only one husband at a time, 520 [s. 43 IJ. 

Maternal grandfatlier— iSce Mother's father, 
as a handliu, Mitakshara, 66 [s. 54 (I 15)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (33)]. 

Maternal grandfatlier’s danghter's son — 
as a bandhu, iMitakshara, 67 [s. 54 (1 19)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (37)]. 

Maternal grandfather’s danghter's daughter’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 26)]. 

Maternal grandfather’s daughter’s son’s son — 

as a bandhu, Mitakshara, 67 [s. 54 (I 25)]. 

Maternal grandfather’s son — 

as a bandhu, Mitakshara, 67 [s. 54 (I 16)]. 

Maternal grandfather’s son’s daughter’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 22)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (48)]. 

Maternal grandfather’s son’s daughter’s daughter’s son 

as a bandhu, 67 [s. 54 (I 38)]. 



INDEX. 


725 


Maternal grandfather’s son’s daughter’s son’s son— 

as a bandhu, Mitakahara, 67 [e. 54 (1 30)]. 

Maternal grandfather’s son’s son — 

as a bandhu, Mitakahara, 67 [s. 54 (I 18)]. 

Maternal grandfather’s son’s son’s daughter’s son— 
as a bandhu, Mitakahara, 67 [s. 54 (I 28)]. 
as a sapinda, Dayabhaga, 97 [a. 88 (49)]. 

Maternal grandfather’s son’s son’s son — 

as a bandhu, Mitakahara, 67 [a. 54 (I 21)]. 

Maternal grandfather’s son's son’s son’s son — 

as a bandhu, Mitakahara, 67 [s. 54 (I 35)]. 

Maternal great grandfather — 

as a bandhu, Mitakahara, 69 [s. 54 (III 1)]. 
as a sapinda, Dayabhaga, 97 [a. 88 (38)]. 

Maternal great grandfather’s daughter’s son— 
as a bandhu, Mitakshara, 69 [s. 54 (III 6)]. 
as a sapinda, Dayabhaga, 97 [a. 88 (42)]. 

Maternal great grandfather's son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 3)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (39)]. 

Maternal great grandfather’s son’s daughter’s son— 
as a .ban<lhi}._Mitak3]]arJi...ft9,^rs. 54,1111 IQ]], 
as a sapinda, Dayabhaga, 97 [s. 88 (50)]. 

Maternal great grandfather’s son’s son — 
as a bandhu, Mitakshara, 69 [s. 54 (III 5)]. 
as a sai)inda, Dayabhaga, 97 [s. 88 (40)]. 

Maternal great grandfather’s son’s son’s daughter’s sqjj_ 

as a bandhu, Mitaksliara, 69 [s. 54 (III 18)]. 
as a sapinda, Dayabliaga, 97 [s. 88 (51)]. 

Maternal great grandfather’s daughter’s son’s son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 11)]. 

Maternal great grandfather’s son’s son’s son— 
as a bandhu, Mitakshara, 69 [s. 54 (III 9)]. 
as a sapinda, Daj'abhaga, 97 [s. 88 (41)]. 

Maternal great grandfather’s son’s daughter’s son’s s^n— 

as a bandhu, Mitakshara, 70 {s. 54 (III 19)]. 

Maternal great grandfather’s daughter's daughter’s sojj 

as a bandhu, Mitakshara, 69 [s. 54 (III 13)]. 

Maternal great grandfather’s son’s daughter’s daughter’s son— 

as a bandhu, Mitakahara, 70 [s. 54 (III 22)]. 

Maternal great grandfather’s son’s son’s son’s son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 17)]. 

Maternal great great grandfather — 
as a bandhu, Mitakshara, 70A. 
as a sapinda, Dayabhaga, 97 [s. 88 (43)]. . 

Maternal great great grandfather’s daughter’s son— 

as a sapinda, Dayabhaga, 97 [s. 88 (47)]. 

Maternal great great grandfather’s son— 

as a sapinda, Dayabhaga, 97 [s. 88 (44)]. 



726 


INDEX. 


Maternal great great grandfather’s son’s daughter’s son — 

as a sapinda, Dayabhaga, 97 [s. 88 (52)]. 

Maternal great great grandfather’s son’s son— 

as a sapinda, Dayabhaga, 97 [s. 88 (45)]. 

Maternal great great grandfather’s son’s son’s daughter’s son — 

as a sapinda, Dayabhaga, 97 [s. 88 (63)]. 

Maternal great great grandfather’s son’s son’s son — 

as a sapinda, Dayabhaga, 97 [s. 88 (46)]. 

Maternal uncle — 

as a bandliu, Iilitakshaia, 67 [s. 54 (I 16)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (34)]. 

Maternal uncle’s daughter’s son — 

as a bandhu, Mitaksliara, 67 [s. 54 (I 22)]. 

Maternal uncle’s daughter’s son’s son — 

as a bandhu, Mitakshara, 67 [s. 54 (I 36)]. 

Maternal uncle’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 18)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (35)]. 

Maternal uncle’s son's son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 21)]. 
as a sapinda, Dayabhaga, 97 [s. 88 (36)]. 

Maternal uncle’s son’s son's son — 

as a bandhu, Mitakshara, 67 [s. 54 (I 35)]. 

Math — See Mohunt. 

devaslhanam. and math, distinction between, 497 [s. 413]. 
possession and management of math properly, 497 [s. 413], 
private institution, whether a 7nath may be a, 512 [s. 424], 

Matrl handhus — 

order of succession among, 66 [s. 54]. 
who are, 48 [s. 46 (4)], 58 [s. 49], 66 [s. 54]. 

Mayukha— 

age and authorship of, 13 [s. 12 (2)]. 

principal work of authority in Gujarat, Island of Bombay and 'North Konkan, 13 

[ 8 . 12 ( 2 )]. 

Btridhana, according to, 143, [ss. 150, 151]. 

succession to property of males, according to, 87 [b. 77]. 

Memons- — See Cutchi Memons, and Halai Memons. 

Mesne profits— 

when allowed on partition, 392 [s. 305 (3)]. 

whether purchaser of undivided interest entitled to, 31 1 [s. 261 (6)]. 

Migration — 

eSect of migration of a Hindu family, 14 [s. 14], 

Minor- 

adoption by a male minor, 590 [s. 621], 
by a minor widow, 651 [s. 465], 
age of majority, 687 [s. 516]. 



INDEX. 


727 


Minor — cotud, 

betrothal of, 528 [s. 437J. 

change of religion by minor and guardianship, 592 [s. 527]. 

debts contracted for family business, liability for, 266 [s. 234 (1) (V)], 276 [s. 240], 
decree against, without sanction of Court, 298 [s. 252], 
guardian, capacity of minors to act as, 588 [s. 618 (4)]. 
guardianship of person and property of — See Guardianship. 

insolvent, whether minor member of joint family firm can be adjudged an, 322 
[8. 266]. 

limitation in suits relating to joint property, effect of minority of a member on, 
298 [s. 252], 

Majority Act 9 of 1875, 587 [s. 516]. 
marriage of, 518 [a. 427], 520 [s. 433], 

guardians for marriage of, 520 [s. 433], 522 [s. 434]. 
minor coparceners, when necessary parties to suits, 293 [s. 251]. 

mortgage of coparcenary property by manager, when binding on minor, 279 [s. 242]. 

new business, whether minor liable for, 266 [s. 234 (2)]. 

partition, right to sue for, 394 [s. 308], 409 [s. 325 (1)], 434 [s. 348]. 

party to suits, 296 [s. 251 (5)]. 

recovery of custody of, 601 [s. 539]. 

reunion, minor cannot bo a party to, 430 [s. 344], 

sale of ooparcenaiy property by manager, when binding on minor, 279 [s, 242], 
will, minor cannot dispose of property by, 448 [s. 367], 

MltaHsliara— . 

principal work of authority except in Bengal, 11 [s. 11]. 

MltaKshara school— 

coparcenary, difference between Mitakshara and Dayabhaga, 233'239 [ss, 213-217], 
337 [s. 277], 

coparcenary property, distinction between Mitakshara and Dayabhaga, 240-270 
[ss. 218-234], 3.39-341 [ss. 278-282]. 
devolution of property according to, 18 [s. 24]. 

difference between Bengal school and, 11 [s. 11], 18 [s. 22], 18 [s. 24], 23 [s. 31], 28 
[s. 36], 99 [s. 95], 100 [s. 96], 109 [s. 121], 433 [s. 347]. 
female heirs, according to, 76 [s. 61AJ. 

partition, difference between Mitakshara and Dayabhaga, 433 [s. 347]. 
sub-divisions of, 12 [s. 12]. 

succession to property of males : general principles, 18-24 [ss. 21-32]. 

order of succession, 26-75 [ss. 33-60]. 
to stridbana, 140 [s, 147]. 

Mlthlla school- 

female heirs according to, 19 [s. 25], 77 [s. 62]. 
stridbana according to, 117 [s. 119]. 

succession to, according to, 149 [s, 153]. 
sub-school of Mitakshara school, 12 [s. 12], 

works supplementing Mitakshara recognised as authoritative by, 12 [s. 12]. 

Mohunt — See Math. 

alienation by — See Alienation. 

decree against, when binding on successors, 504 [s. 417], 
devolution of office of, 504 [s. 418J. 

income of endowed property, iiowcrs over, 499 [a. 414 (2)]. 



728 


INDEX. 


Motiunt — contd. 

legal incidents of office of, 498 [s. 414]. 
meaning of, 497 [s. 413]. 
offering by followers to, 510 [s. 422]. 
power of, to contract debts, 500 [s. 415 (1)]. 

to alienate endowed property, 500 [s. 415]. 
to sue, 497 [a. 413]. 
removal of, 511 Ps. 423]. 

transfer of right of management, 507 [s. 420]. 

Molesalam Girasias of Broach — 

bow fur Hindu law applies to, 033 [s. 582]. 


Mortgag'e — 

coparcener, by. of Ida undivided sh.oi-e, Mitakshara, 303 [ss. 269, 260]. 

Dayabhaga, 341 [s. 282]. 

coparcener's interest, rights of moitgagec of, 314 [.s. 263], 364 [s. 294 B (2)]. 

decree against father, 364 [s. 294 B (2)1. 

decree in foreclosure suit against manager, 295 [s. 251]. 


father, by, of joint property for payment of his own debts, 372 [s. 295]. 
guardian, by, appointed by the Court, 599 [s. 536]. 
manager, by, of joint family property, 279 [s. 242]. 
mohunts and shebaits, by, of endowed property, 500 [s. 415]. 
natural guardian, by, 592 [s. 528]. 

setting aside unauthorised mortgage of joint property, 323-328 [ss. 268-269] 


suits on, parties to, 293 [a. 251]. 
testamentary guardian, by. 596 [s. 532). 

widow, by, of property inherited from her husband, 179 Ls. 181]. 


Mother- 

adoption, right of mother to give her son in, 659 [s, 476]. 
adoptive mother, whether inherits to adopted son, 570 {s. 496]. 
as an heir to her daughter — 

where daughter married, Day., 152.154 [ss. 155-157]; Mad., 147 [s. 152 (3) 
(iv)]; May., 145 [s. 151 (iii)]; Mit., 140 [s. 147]; Mith., 149 [s. 153]. 
where daughter unmarried, 138 [s. 145]. 
sulka, heir to, 139 [s. 146]. 

unchaaiity, whether a bar to inheritance to daughter, 134 [a. 139]. 
whether takes absolute or limited e.state : Bombay, 163 [s. 171]. 

other provinces, 160 [s. 169]. 

as an heir to her son — 

order of succession, Pay., 95 [s. 88 (8)] ; May., 43 [a. 43 (7)], 87 [s. 77 (8)] ; 

Mit., 43 [8. 43 (7)], 83 [s. 72 (9)]. 
remarriage, whether affects right to inherit, 4.3 [s. 43 (7)]. 

unchastity, whether affects right to inherit. Day., 95 [s. 88 (8)], 100 [s. 96] ; 
Mit., 43 [s. 43 (7)]. 

whether takes limited or absolute estate ; Bombay, 161 [9. 170]. 

other provinces, 169 [s. 168 (4)]. 

bequest to mother, when alienable by her, 136-138 [ss. 142-144], 

conversion of, and guardianship, 691 [s. 626]. 

gift to, when alienable, 136-138 [ss. 142-144], 

gift from, to dajjghter is saudayika, 136 [s. 143]. 

guardianship of child’s person, 588 [s. 518], 

property, 588-590 [ss. 518-519]. 
guardianskip, and conversion of. 591 la. 5261. 



INDEX. 


729 


Mother— coreW. 

illegitimate children, guardianship of, 590 [s. 5221. 

inheritance — See sub heads “as an heir to her daughter,” “ as an heir to her son.” 
marriage, mother’s right to give daughter in, 520 [s. 433], 522 [s. 434]. 
partition, share on, Mitakshara, 400 [s. 316] ; Dayabhaga, 435 [s. 353]. 

omission to reserve share tor mother, effect of, 400 [a. 316]. 
party to suit for partition, 424 [s. 333 (2)]. 
provision for funeral ceremonies of mother, 390 [s. 304]. 
step. mother, whether an heir, 43 [s. 43 (7)1, 83 [s. 72 (9)]. 

Mother-ln-law— 

when entitled to maintenance from daughter-in-law, 604 [s. 544, ill- c]. 

Mother’s brother — 

as a handhu, Mitak.“hara, 67 [s. 54 (I 16)]. 

as a sapinda, Dayabhaga, 97 [s. 88 (34)]. 

property inherited from, whether ancestral, 245 [s, 223 (2)]. 

Mother’s brother’s daughter’s daughter’s son — 

as a handhu, Mitakslrara, 67 [s. 54 (I 38)]. 

Mother’s brother’s daughter’s son’s son — 

as a handhu, Mitakshara, 67 [s. 54 (I 34)]. 

Mother’s brother’s son— 

as a handhu, Mitakshara, 48 [s. 46 (4)]. 67 [s. 54 (I 18)]. 

Mother’s brother's son’s son— 

as a handhu, Mitakshara, 48 [s. 46 (4)], 67 [s. 54 (I 21)]. 

Mother’s father — 

as an heir, Mitalcshara, 48 [s. 46 (4)], 66 [s. 54 (I 15)]. 

Dayabhaga, 97 [s. 88 (33)]. 

property inherited from, whether ancestral, 245 [s. 223 (2)]. 

Mother’s father’s brother — 

as a handhu, Mitakshara, 69 [s. 54 (III 3)]. 

Mother’s father’s brother’s son — 

as a bandhu Mitakshara, 69 [s. 54 (III 5)]. 

Mother’s father’s brother’s son's son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 9)]. 

Mother’s father’s father— 

as a bandhu, Mitakshara, 69 [s. 54 (III 1)]. 

Mother’s father’s father’s son’s son’s son’s son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 17)]. 

Mother’s father’s son— 

- as a bandhu, Mitakshara, 67 [s. 54 (I 16)]. 

Mother’s father’s son’s daughter’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 22)]. 

Mother’s father’s son’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 18)]. 

Mother's father’s son’s son’s daughter’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 28)]. 



730 


INDEX. 


Mother’s father’s son’s son’s son — 

as a bandhu, Mitakahara, 67 [a. 54 (I 21)]. 

Mother’s father’s son’s son’s son’s son — 

as a bandhu, Mitakahara, 67 [s. 54 (I 35)]. 

Mother’s father’s sister’s son — 

as a bandhu, Mitakahara, 48 [s. 46 (4)], 6& [a. 54 (III 6)]. 
as a sapinda, Dayabhaga, 97 [a. 88 (42)]. 

Mother’s maternal grandfather — 

a.s a bandhu, Mitakahara, 69 [s. 54 (III 2)]. 

Mother’s maternal grandfather’s son — 

as a bandhu, ICtakshara, 69 [a. 54 (III 4)]. 

Mother’s maternal grandfather’s son’s son — 

as a bandhu, Mitakshara, 09 [s. 54 (III 7)]. 

Mother’s maternal grandfather’s son’s son’s son— 

as a bandhu, Mitakshara, 69 [s. 54 (III 12)]. 

Mother’s maternal grandfather’s daughter’s son— 

.as a bandhu, Mitakshara, 09 [s- 54 (III 8)]. 

Mother’s maternal grandfather’s son’s daughter’s son— 

as a bandhu, Mitakahara, 69 [s. 54 (III 14)]. 

Mother’s maternal grandfather’s son’s son’s daughter’s son— 

as a bandhu, Mitakshara, 70 [s. 54 (III 25)]. 

Mother’s maternal grandfather’s son’s son’s son’s son— 

as a bandhu, Mitakshara, 70 [s. 54 (III 21)]. 

Mother’s maternal grandfather’s daughter’s son’s son— 

as a bandhu, Mitakshara, 09 [s. 54 (III 15)]. 

Mother’s maternal grandfather’s son’s daughter’s son’s son — 

as a bandhu, Mitakshara, 70 [s. 54 (III 20)]. 

Mother’s maternal grandfather's daughter’s daughter’s son — 

as a bandhu, Mitakshara, 69 [s. 54 (lU 16)]. 

Mother’s maternal grandfather’s son’s daughter’s daughter’s son 

as a bandhu, Mitakshara, 70 [s. 54 (III 29)]. 

Mother’s maternal great grandfather — 

as a bandhu, Mitakshara, 70A. 

Mother’s mother- 

inheritance to maiden’s property', 138 [s. 145]. 

Mother’s mother's brother’s son — 

as a bandhu, Mit., 48 [s. 46 (4)]. 

Mother’s mother’s sister’s son— 

as a bandhu, Mit., 48 [a. 46 (4)]. 

Mother’s sister — 

as a bandhu, Bombay Presidency, 72 [s. 56]. 

Mother’s sister’s daughter’s son— 

as a bandhu, Mitakshara, 67 [s. 54 (I 26)]. 

Mother’s sister’s son — 

as a bandhu, Mitakshara, 48 [s. 46 (4)], 67 Is. 54 (I 19)]. 
as a sapinda, Dayabhaga, 97 [s. 88 f37)]. 



INDEX. 


731 


Mother's sister’s son’s son— 

as a bandhu, Mitakshara, 48 [a. 46 (4) ], 67 [s. 54 (I 25)]. 

Moveable property — 

ancestral moveables, power of father over, Mitakshara, 250 [s. 225]. 

Dayabhaga, 337 [a. 274]. 
partition of, 389 [s. 303]. 

widow or other limited owner’s power to dispose of moveable property, received or 
inherited from husband or others, 178-179 [ss. 179-180]. 

NaiklnS — See Dancing Girls. 

Nambudrl Brahmins — 

application of Hindu I.aw to, 6 [s. 6 (iv)]. 

Narada — 

code or institutes of, 10 [s. 8 (2) (iii)]. 

Native Christians— 

how far governed by Succession Act, 7 [s. 7 (2)]. 
principle of survivorship, how far applies to, 7 [s. 7 (2)]. 

Native Converts Marriage Dissolution Act- 

provisions of, 3 [s. 4 (iy)], 531 [s. 441]. 

Necessity — See Alienation. 

Nibandas— 

origin of, 10 [s. 9]. 

NUkantha— 

author of Mayukha, 13 [s. 12 (2)]. 

Nlrnayaslndhu — 

work supplementing Mitakshara in Benares and Bombay, 12 [s. 12 (1)]. 

Obstructed heritage— 

what is, 240 [s, 218]. 

Orphan- 

adoption of, whether permissihles, 563 [s. 482]. 

Outcast- 

adoption of, whether permissible, 537 [s. 450, ill. (c)]. 

Padavandanika— 

a species of stridhana, 125 [s. 120]. 

Parasara Madhava — ■ 

stridhana according to, 115 [s. 118]. 

work supplementing Mitakshara in Madras, 12 [s. 12(1)] 

Parents- — See Bather, Mother. 

adoption, right to give son in, 559 [ss. 475-476]. 
guardianship, rights of, 588 [s. 518]. 
maintenance of, 606 [s. 548]- 
marriage right to give daughter in, 520 [s. 433]. 

Parties to suit — 

relating to ancestral business, 297 [s. 251 (7)]. 

coparcenary property, 293-299 [ss. 251-252]. 
partition, 424 [s. 333 (2)]. 



732 


INDEX. 


Partition— 

coparcener, share of, JiQS [ft. 3Ki]. 
a^'Count, mode of taking, on, 392 [h. *W)5]. 
adopted Kon and right to demand partition, 397 ffi. 311]. 
a<lvf'rr5e posMihsion of portion of the joint pro£)erty, effect of, 39i C®* 304]. 
after-born &on and partition, 395-396 [sm. 309-310], 427 [a. 336]- 
of a disqualified coparcener, 106 [». 109]. 
agreement not to partition, 402 [s. 310]. 
agreement partition by, 410 [s. 325 (2)], 412 [b. 326]. 
agreement to separate, ’whether -writing necessary for, 413 [s. 3^® (2)]- 
allotmcnt of sharcfi, MitaUhhara, 403 [s. 321 J. 

Tlayal ihafta, 43K [s. 355j. 

antentral moveables, son’s right to enforce partition of, 389 [s. 303]. 

ancestral property, share allotted <m £>artition how far, 246 [s. 223 (4)]. 

arbitration, by, 411 [s. 325 (3)]. 

birth of a member pending suit for, 422 [s. 330]. 

burden of proof as to, 414 [s. 327]. 

ecssor of commenaaiity, how far evidence of partition. 415 [s. ^27 (4)]. 
erjuversion from Hinduism and partition, 427 [s. 334]. 
coparcenary propert}', partition confined to, 389 [s. 303]. 
coparceners, rights of, 39 i [.s. 300], 398 [.s. 313], 402 [s. 3)8]. 

vA tk Vl^l 

debt contracted by father after, 349 [s. 290 (5)]. 

before, 319 [ 6. 290 (6)]. 
debts, provision for, on partition, 390 [s. 304]. 
declaration of intention to sefiaratc, 408 [s. 325]. 
dcci'ee, partition by, 421 [s. 329]. 
definition of. Mat., 408 [s. 325] ; Pay., 433 [s. 347]. 

di*jabiljty, how far efIeot.s exclusion from share on partition, 1^4 [s, 106]. 

disability, removal of, and re-opening of partition, 106 [s. 108]- 

disqualified coparceners, 402 f.s. 318]. 

dw'elling house, partition of, 427 [s. 335 (2)]. 

effect of partition, 420 [sa. 340-341]. 

evidence of partition, 414 [s. 327]. 

exclusion from share on partition, 105 [s. 100]. 

father’s mother, rights of, Mit., 401[^. 317] ; Pay., 437 [s. 3543- 

father, right of, to effect partition among his sons, 407 [s. 323]* 

female coparceners, rights, of, Payabhaga, 434 [s. 348]. 

funeral expenses of mother, provision for, 391 [s. 304]. 

grandmother, rights of, Mit., 401 [s. 317] ; Pay., 437 [s. 354]. 

grandsons, rights of, Mit., 393 [.s. 307] ; Day., 434 [s. 349]. 

great grandsons, right of, Mit., 393 [s. 307] ; Pay., 434 [a. 349]' 

how effected, 408 [s. 325]. 

idols, partition of, 389 [s. 303]. 

illegitimate sons, rights of, Mit., 397 [a. 312] ; Pay., 435 [s. 350]. 
inheritance, rights of, whether affected by partition, 429 [s. 341]- 
intention the true test of partition, 392 [a. 325], 433 [s, 347], 

Khoja son, rights of, 394 [s. 307]. 

liability of son for debt contracted by father before, 349 (s. 290 (0)]- 
lunacy and pa£;tibion, 106 [s. 107]. 

maintenance of dependants members and partition, 390 [s. 30^]- 
manager, liability of, to account on partition, 274 [s. 238]. 



INDEX. 


733 


Partition— conid. 

mniriage expenses of female and male members, provision for, 390 [a 30-t]. 

mesne profits when allowed on partition, 392 [s. 305 (3)]. 

metes and bounds, by, 406 [s. 322], 41 1 [s, 325 {3)]. 

minor coparcener. 394 [s. 308], 409 [a. 325 (1)], 434 [s. 348], 

modes of division, 403 [s. 321]. 

modes of efiecting partition, 408 [s. 325]. 

mortgagee of undivided interest, rights of, 314 [a. 263]. 

mother, rights of, Mit., 400 [s. 316] ; Day., 435 [s. 3.53]. 

partial partition, 417 [s. 328]- 

parties to suit for, 424 [s. 333 (2)]. 

Partition Act 4 of 1893, 427 [s. 335]. 

partition how effected, Mit., 408 [s. 325] ; Day., 433 [s. 347], 
passage, 289 [s. 303]. 

person entitled to partition, Mit., 393-402 [ss. 306-318] ; Day., 434-435 [ss. 348-351]. 
per stirpes, 403 [s. 321 (3)], 438 [s. 355 (3)]. 
property liable to partition, 389-392 [ss. 303-305]. 

purchaser of undivided interest, lights of, Mit., 310 [s. 261 (3)], 398 Is. 314] ; Day., 
435 [s. 351]. 

registration of deed of partition, 413 [s. 326 (2)]. 

religious order, adoption of, whether effects exclusion from partition. 105 [a. 111]. 

re-opening of, 427-428 [ss. 336-339]. 

restraint against, 402-403 [ss. 3I9-320J. 

reunion — See Reunion. 

right of way, 389 [s. 303]. 

right to enforce partition, 272 [s. 235 (5)], 342 [s. 286]. 
sale in lieu of partition, 427 fs. 335]. 
separation of one coparcener, 417 [s. 328 (3)]. 
share acquired on, devolution, of 429 [s. 340]. 

whether separate property, 257 [s. 230 (§)]. 
shares on partition, Mit., 403 [s. 321] ; Day., 438 [s. 355]. 
son born after but conceived before partition, rights of, 395 [3. 309]. 
son conceived as well as born after partition, rights of, 396 [s. 310], 
sons, rights of, Mit., 393 [s. 307] ; Day., 434 [s. 349]. 
son’s son’s rights of, Mit., 393 [3. 307] ; Day., 434 [s. 349]. 
son’s son’s son’s rights of, Mit., 393 [s. 307] ; Day., 434 [s. 249], 
step-mother, rights of, Mit., 400 [s. 316 (3)] ; Day., 436 [s. ^53 (4)]. 
stridhana, whether share allotted to mother and father’s mother or partition is, 
their, 127 [s. 128], 164 [s. 172]. 
suit, institution of, effect of, 409 [s. 325 (1)]. 

births and deaths of coparceners pending, 422-423 [ss. 530-332]. 
hotchpot, 425 [s. 333 (3)]. 
minor, by, 409 [s. 325 (1) (ii)]. 
parties to, 424 [s 333 (2)]. 
property to be comprised in, 425 [s. 333 (3)]. 
who may sue for, 423 [s. 333 (1)]. 
way, right of, 389 [s. 303]. 
well, partition of, 389 [s. 303]. 

what constitutes partition, Mit., 408 [s. 325] ; Day., 433 [s. 347]. 
widows, between, 39 [s. 43 (4)]. 

wife, rights of, Mit., 309 [s. 315] ; Day., 435 [s. 352]. , 

will and restraint against partition, 403 [s. 320], 477 [s. 393], 



734 


INDEX. 


Partition — conid. ^ 

will, partition by father or other coparcener bj‘ means of, 408 [s. 324]. 

partition by so-called, 431 [s. 345]. 
w'riting, whether necessary tor, 413 [s. 326 (2)]. 

. Paternal uncle — 

as anheirMit., 40 [s. 43 (14)], S4[s.72(35)] ; Day., 96 [s. 88 (15)]. 

Paternal uncle's daughter — 

as a bandhu, Bombay 72 [s. (56)], 77 [s. 64 (I)]. 

Paternal uncle’s daughter’s son — 

ns an heir, Mit,, 67 [s. 54 (I. 20)] ; Day., 96 [s. 88 (29)]. 

Paternal uncle’s son’s daughter's son’s son— 
as a bandhu, Mit., 67 [a. 54 (I. 29)]. 

Paternal uncle’s son — 

as an heir, Mit., 46 [s. 43 (15)], 84 [s. 72 (36)] : Day., 96 [s. 88 (16)]. 

Paternal uncle’s son’s daughter’s son — 

as an heir, Mit., 67 [s. 54 (I. 20)] ; Day., 96 [s. 88 (30)]. 

Paternal uncle's son's son — ■ 

as an heir, Mit., 40 [s. 43 (16)], 85 [s. 72 (37)] ; Day., 90 [a. 88 (17)]. 
Paternal uncle's son’s son’s son — 
as an heir, Mit., 136 [s. 143]. 

Per capita- 

partition, 403 [s. 321]. 
succession, 24 [s. 32]. 

Perpetuities— 

Huidu law and rule against, 477 [s. 392]. 
rule against, in regard to bequest, 470-474 [ss. 385 (2)-387]. 
in regard to endowments, 496 [s. 411], 
in regard to gifts, 470-474 [sa. 385 (1), 386, 387], 

Per stripes— 

partition, 403 [a. 321], 
succession, 24 [s. 32]. 

persona designate — 

adopted son, when may take as, 582 [s. 511, ill. (a)]. 

Pious obligation — See Debts. 

Pitri bandus — 

order of succession among, 66 [s. 54]. 
who are, 49 [s. 46 (4)], 58 [s. 49], 68 [s. 54], 

Posthumous son — 

devesting of estate, 20 [s. 28]. 

Power of appointment— 480 [s. 398]. 

Prajapatya marriage — 

an approved form of marriage, 619 [s. 428], 

Preceptor — 

as an heir, 74 [a. 57] ; Day., 97 [s. 91]. 

Presumption — 

alienation with consent of reversioners, in case of, 191 [s. 183 (1)]. 

business carried on by a coparcener, as to, 269 [s. 234 (4)]. 

joint family .and property, as to, Mit., 260 [s. 233] ; Day., 342 [a. 2861. 

legitimacy, as to, 529 [s. 438]. 

marriage, as to form, of, 142 [s. 147], 520 (s. 429]. 

performance of cereraoniea, 629 [s. 438]. 
validity, 529 [s, 438]. 



INDEX. 


735 


Pr Gumption — contd,. 

partition, as to, 418 [s. 328], 

property in possession of widow, as to, 134 [s. 140], 

savings by widow of income of husband’s estate, as to, 169 [s. 177], 

school, as to, 14 [s. 14], 

when, one coparcener separates, 419 [s. 328 (3)]. 

Prltldatta — 

a kind of stridhana, 109 [s. 113 (1)], 126 [s. 126]. 

Probate — 

whan necessary, 456-458 [sa. 375, 376]. 

Probate and Administration Act — 
application of, 458 [s. 376]. 
repeal and re-enactment of, 458 [s. 376]. 

Promissory note — 

suit on, passed by manager, 277 [sec. 240 (4)]. 

Propinquity- 

guiding principle of succession in Mit. law, 28 [s. 36], 60 [s. 51]. 

Prostitutes — 

succession to property of, 156 [s. 164]. 

Pundits — 

institution of, when abolished, 11 [s. 10]. 

Pun jab- 

adoption, in the, 666 [s. 488], 

Purchaser — See Alienation. 

ancestral house, purchaser of, and widow’s right of residence, 617 [s. 562]. 
burden of proof in case of sale by manager, 285 [s. 244], 

widow, 188 fs. 182], 

rights of purchaser of coparcener’s share, Mit., 304 [s. 261], 340 [s. 280], 298 [s. 314] ; 
Day,, 435 [s. 351]. 

equitable rights on partition, 310 [s. 261 (3)]. 
extent of share, 311 [s. 261 (5)]. 

right subject to aU charges and liabilities, 312 [s. 261 (8)]. 
right to joint possession, 305 [s. 261 (1)]. 

in Bengal, TT.P. and Madras, 305 [s. 261 (1)]. 
in Bombay, 305 [s. 261 (1)]. 
right to mesne profits, 311 [s. 261 (6)]. 
right to partition, 309 [s. 261 (2)]. 
right to specific performance, 312 [s. 261 (7)]. 

whether hound to sue for partition in coparcener’s lifetime, 311 [s. 261 (4)]. 

Registration — 

of authority to adopt, 541 [s. 456]. 
of deed of gift, 441 [s. 358], 
of deed of partition, 412 [s. 326]. 

Religion, Change of — 

adoption, effect on, 559 [s. 478], 
civil rights, whether lost by, 2 [s. 4 (I)]. 

Coparcenership, effect on, 427 [s. 334], 

dissolution of marriage, whether effected by, 630 [s. 441]. 

divorce, when brought about by, 530 [s. 441]. 



736 


INDEX. 


Religion, change of — conid. 

jr'i-'ii'lianphip and eh.ange of religion by father, 591 [s. 625], 

by infant, 592 [s. 527 J. 
by mother. 591 [s. 52C]. 
maintenance, effect on right to, C12 [s. 557]. 
restitution of conjugal rights, effect on suit for, 533 [s. 444]. 
succession, whether a bar to, 101 [s. 97], 

Religious endowments — See Endowments. 

Remainder- 

gifts or bequest by iv.ay of. 47t> fs. 390]. 

Remarriage of widows— 

adoption, power to givo in, after remarriage, 552 [s. 467]. 

take in, after remarriage, 552 [s. 467]. 
devesting of husband's estate by remarriage, 39 [s. 43 (3)]. 
guardianship, effect of remarriage on the right of, 590 [s. 523], 

Hindu ti idow's Remarriage Act, 1S56, operation of, 2 [s. 4 (ji)], 520 [s. 432], 590 
[s. 523], 

legalized by Act 15 of 1856, 2 [s, 4 (li)], 39 [s. 43 (3)]. 
maintenance, whether widow loses right by remaniage, 617 [s. 553 ]. 
minor widow, when and whose consent necessary for remarriage of, 621 [s. 433 ], 
succession, effect of remarriage on right of, 39 [s. 43 (3)], SO [is. 08 (v)]. 
Representation — 

doctrine of, 21 [s. 29], 

Residence, right of — 

unmanied daughter of deceased coparcener, of, 626 [s. 574]. 
widow, of, how affected by transfer of the house, 617 [s. 562], tj 05 [a. 573], 
wife and unmarried daughters of sole owner, of, how affectei] gale of the family 
house, 627 [s. 575], 

Restitution— 

of conjugal rights, 533 [s. 444]. 

Reunion — 

difference between coparcenary formed by reunion and coparcenary by birth, 430 
[s. 343], 

intention necessary to constitute, 430 [s. 344], 
minor coparcener and, 430 [s. 344]. 
persons who may reunite, 429 [s. 342]. 
results of, 430 [s. 343], 
reunion a question of fact, 419 [.s. 328 (3)]. 

.succession after reunion, Mitakshara, 75 [s. 60]. 

Dayabhaga, 98 [s. 94]. 

Reversioners— 

adverse possession against widow whether a bar to suit by, 222 [s. 201 ]. 
alienation by widow with consent of, 191 [s. 183], 196 [s. 184]^ 202 [s. 191]. 
without consent of, 196 [s. 185]. 

for legal necessity, effect of, on reversioners, 196 [s. 184]. 
reversioner party to, 205 [s. 192]. 
compromise between widow and next reversioner, 210 [s. 194] 

compromise by widow involving alienation, how far binding On 

where reversioner is a party, 205 [s. 192], 
where reversioner is not a party, 207 [a. 193], 



INDEX. 


737 


Reversioners— coraJd. 

consenb of, alienation by widow, 202 [a. 191]. 

debts contracted by widow and not charged on the estate, whether binding on, 211 
[s. 195], 

declaratory decree, who bound by, 229 [s. 210]. 
declaratory suit by, 224, 226, 226 [ss. 203, 205, 206]. 
decree against widow, when binding on reversioners, 219 [s. 199]. 
definition of, 165 [a. 175 (1)]. 

distinction between “ next ” and “ remote ” reversioners, 191 [s. 183]. 
election by, 202 [a. 190]. 

injunction against widow in case of waste, 224 [s. 204], 
limitation period of, declaratory suits, 228 [s. 208]. 

for suit for possession, 229 [s. 209]. 

possession adverse against widow, whether bans reversioners, 222 [s. 201]. 
remote reversioners, rights of, 226 [s. 207]. 

res judicata, decree in suit between widow and next reversioners, 221 [s. 200], 
decree in suit between next reversioner and alienee, 229 [s. 210], 
rights of reversioners, 223 [s. 202], 

spes suooessionis, reversioner’s interest is, 166 [s. 175 (2)]. 
succession by, custom among Jats, 167 [s. 175]. 
surrender of estate by widow to reversioners, 212 [s. 197], 
title derived from last full owner, 166 [s. 175 (3)]. 
waste by widow, and injunction, 224 [s. 204]. 

will by widow of husband’s estate, and declaratory suit by, 226 [s. 206]. 

Revocation- 

gift, of, 446 [s. 363]. 

power to adopt, of, 543 [s. 460]. 

will, of, 453 [s. 370]. 

SakUlyas — [Bengal School] — 
enumeration of, 93 [s. 84]. 
order of succession among, 97 [s. 89]. 
principles governing order of succession among, 94 [s. 87]. 

Sale — See Alienation u.nd Purchaser. 

ill execution of decree against father for his debts, 356 [s. 294]. 

coparcener, 304 [s. 261]. 
widow, 219 [s. 199]. 
religious office, of, 507 [s. 420 (1)]. 

Samanodakas — 

according to ilitakshara, 31 [s. 38], 32 [s, 40]. 

Uayabliaga, 89-90 [ss. 80, 81], 93 [s. 85]. 
order of succession among, Mitakshara, 4S [s. 45], 86 [s. 73]. 

Dayabhaga, 97 [s. 90]. 
table of, Mitakshara, 32 [s, 41], 34 [Table], 
widows of, as heirs in Bombay, 81 [s. 69]. 

Sanyas! — 

exclusion from inheritance .and from share on partition, 107 [s. 111], 
succession to property of, 74 [s. 58], 

Sapilidas — 

according to Mitakshara, 29-32 [ss. 37-39]. 

Dayabhaga, 90 [s. 82], 

adoption by -widoTV and consent of sapindas, 514 [s. 462 (2)]. 


24 



738 


INDEX. 


Saplndas — conid. 

bhinna-gotra sapindas, Mitakshara, 29 [s. S’?], 5-48 [a. 463 (2)], 

gotraja aapindaa, Mitakshara, 29 [s. 37]. 

half-blood. See. aub-hcad " Whole blood.’’ 

marriage and .sapindaship, 525 [s. 436]. 

order of succession among, Mitakshara, 35 [s, 43]. 

Dayabhaga, 94 [a. 88], 

principles governing precedence among, Dayabhaga, 94 [s. 86]. 
table of aapiudas, Mitakshara, 32 [s. 41]. 

whole blood, sapindas of, when preferred to one of half-blood, 47 [s. 44]. 
Sapratibaudlia daya— -See Obstructed heritage, 
moans obstructed heritage, 240 [s. 218 (1)]. 

Saptapadi— 

a marriage ceremony, 528 [s. 437 (1)]. 

Sarasvati Vilasa — 

an authority in Madras, 12 [s. 12], 147 [s. 152]. 

Saudayika— 

a kind of atridhana, 118 [s. 120], 134 [s. 141], 136 [s. 143]. 

Savings— 

from income, 169 [s. 177], 

Schools of law— 

Dayabhaga and Mitakshara schools, 11 [s.ll]. 
migration and school of law-, 14 [s. 14]. 

Mitakshara school, divisions of — 

Benares, 12 [s. 12], 

Bombay or Maharashtra, 12 [s. 12], 

Madras or Dravida, 12 [s. 12], 

Mitbila, 12 [a. 12], 
origin of, 10 [a. 9]. 

atridhana according to difiorent schools. See Stridhana. 

succession according to difierent schools. See Succession to Males, and Succession 
to Females. 

works of authority in the two schools, 11 [s. II]. 

in the sub- schools, 12 [s. 12], 

Sell-acQuired property- 

accretions, 257 [s. 230 (5), (6)]. 

ancestral property lost to family, 267 [s. 230 (4)], 259 [s. 232]. 
description of, 256 [s. 230]. 

gains of learning : gains of science, 257 [s. 231], 268 [s. 231A]. 

gift of, 440 [s, 357], 

heir entitled to, 243 fs. 222], 

inheritance from collaterals, 246 [s. 223 (3)]. 

from females, 158 [s. 166]. 
legal incidents of, 243 [s. 222]. 
obstructed heritage, 256 [s. 230]. 
partition, not liable to, 243 [s. 222], 389 [s. 303]. 
powers over, 243 [s. 222]. 

practice of profession or occupation, 257 [s. 231], 258 [s. 231A]. 
presumption as to, 260 [s. 233]. 

property given or bequeathed by paternal ance.stor. 247 Pr. 22.3 15)1 



INDEX, 


739 


Self-aSJdulred property — contd. 

proparty thrown into common stock, whether joint or separate, 251 [s. 227], 

separate earnings, 267 [a. 231], 258 [s. 231A]. 

share allotted on partition, 257 [a. 230 (G)]. 

sole surviving coparcener, property held by, 257 [s. 230 (7)]. 

what ia, 256 [a. 230]. 

Separate property — See Self-acquired property. 

Shebait — tSee Endowments, 
alienation of endowed property by, 506 [a. 419 (2)]. 

decree against, when binding on successors, 504 [a. 417]. 

devolution of office of, 505 [a. 419]. 

female, interest in shebait, of, 506 [s. 419]. 

gift by, of right of management, 508 [s. 420 (2)]. 

income of endowed property, powers over, 498 [a. 414], 

legal incidents of office of, 498 [s. 414]. 

lunacy of, 498 [a. 413]. 

meaning of, 497 [a. 413]. 

position of, 498 [s. 414]. 

power of, to alienate endowed property, 500 [a. 415]. 
to contract debts, 500 [s. 415]. 
to sue, 497 [a. 413], 
removal of, 511 [s. 423]. 

sale by, of right of management, 507 [a. 420 (1)]. 

Sikhs— 

application of Hindu law to, 6 [a. 6 (iv)]. 

Sister — See Half-sister, 
as an heir — 

in Bombay, Mit., 45 [a. 43 (13C)], 79 js. 65], 83 [s. 72 (14)]. 

May., 46 [s. 43 (13C)], 79 [s. 65]. 
in Madras, under Act 2 of 1929, 45 [s. 43 (130)], 71 [a. 55]. 

before Act 2 of 1929, 71 [a. 55]. 
elsewhere, under Act 2 of 1929, 45 [a. 43 (130)]. 

whether takes an absolute or a limited estate, Bombay, 161 [s. 170 (2)]. 

Madras, 159 [a. 168 (4)]. 
elsewhere, 45 [a. 43 (13C)], 159 
La. 168 (4)]. 

whether take as tenants-in-common or as joint tenants, 23 [a. 31], 79 [a. 65 (2)]. 
as a stridliana heir — 

Madras, as heir of the deceased’s father, 148 [a. 152 (4)], 

Mayukha, as heir of the deceased’s father, 145 [s. 151 (iii)]. 

Mitakshara, as heir of the deceased’s father, 140 [s. 147 (2)]. 
succession to maiden’s property, 138 [s. 145]. 

whether takes an absolute or limited estate : Bombay, 163 [s. 171]. 

elsewhere, 160 [a. 169]. 

maintenance, 604 [s. 544], 

Sister’s daughter — 

as an heir in Bombay — 

inherits as a bandhu, 72 [s. 56]. 
takes an absolute estate, 161 [s. 170 (2)]. 



740 


INDEX. 


Eiister’s daughter — conid. 

as an heir in Madras — 

inherits as a bandbu, 72 [s. 56]. 

Sister’s daughter’s son — 

as a bandhu, Mitakshara, 49 fs. 46], 66 [s. 54 (I. 17)]. 

Sister’s daughter’s son’s son — 

whether a bandhu, 50 [s. 47], 66 [s. 54 (13)]. 

Sister’s son — 

as an heir — • 

Dayabhaga, 96 [s. S8 (12)]. 

Mitakshara, 46 [s. 43 (1.3D)], 48 [s. 46 (4)], 66 [s. 54 (I. 6)1. 
as a .stridhana heir — 

Dayabhaga, 153 [s. 155], 154 [s. 157], 

Madras, 149 [s. 152 (4)]. 

Mayukha, 145 [s, 151 (III)]. 

Mitakshara, 140 [s. 147]. 

Mithila, 149 [s. 153]. 

succession to maiden’s property, 1.38 [s. 145], 

Sister’s son’s son — 

as a bandhu, Mitakshara, 49 [s. 46], 66 [s. 54 (I. 6)]. 

Sister’s son’s son’s son— 

whether a bandliu, 50 [s. 47]. 

Smriti— 

as a source of Hindu law, 9 [s. 8]. 

Snirltl Chandrika — 

stridhana according to, 115 [s. 118], 149 [s. 152 (2)]. 

rules of succession to, 149 [s. 152 (3)]. 
work of authority in Madra.s, 12 £s. 12 (1)]. 

Sons — See Coparceners, C’oparcenary property, adoption, 
adopted son — See .\doption, 

adult sons, when father bound to maintain, 603 [s. 545]. 
after-born .son and partition, 395-390 [.ss. 309-310]. 

of a disqualified coparcener and partition, 106 [3. 109]. 
of a disqualified heir, 105 [s. 105]. 

alienation by father for payment of his debts, how far binding on. 369 [s. 295], 
ancestral propertv and .son's right.s, Mitakshara, 2-13 [s. 223 (1)], 249 [s. 224], 

Dayabhaga, 336 [s. 273]. 

as heirs to their father — 

Dayabhaga, 95 [s. 88 (l)-(3)]. 

Mayukha, 87 fs. 77 (l)-(3)]. 

Mitakshara, 35 fs. 43 (l)-(.3)], 82 [s. 72 (l)-(3)]. 
as stiidhana heirs — 

Dayabhaga, 152-1-54 [.ss. 155-157]. 

Madras, 149 [.s. 152 (3)]. 

Mayukha, 143 [s. 151]. 

Mitakshara, 140 [s. 147 (2)J. 

Mithila, 149 [s, 1,53]. 
coparceners, sons inherit as, 23 [s. 31], 
disinheritance', 451 [s. 368]. 



INDEX. 


741 


Sons— roreirf. 

fotlier’s debt4 liability of sons for, 343 [s. 287], 347 [s. 290], 

alienation of son’s interest by father for payn^®’'^ debts, 369 

[S.295]. 

immoral debts, sons whether liable for, 382 [s. 29°J' , 

sale of sons’ interest in execution of decree agait'®^ father, 366 [s. 294], 
separate property of sons whether liable for, 34^ 287], 

gift or bequest by father to his son, 247 [s. 223 (5)]. 
guardianship of — See Guardianship, 
illegitimate - — iSee Illegitimate sons, 
joint tenants, sons inlierit as, 23 [s. 31]. 
m,aintenanco of parents, 606 [s. 548]. 
maintenance of sons, 605 [s 545]. 

partition, right to demand, Mit., 393 [s. 307 ] ; Day., 434 [s. 3^®J' 
sharesjon, 403 fa- 321]. 
son conceived and born after, 396 [s. 310]. 
son conceived before but born after, 395 fs. 309]. 
self-acquired and separate property of father, 243 [a. 222]. 
son in his mother’s womb, 328 [s. 270]. 

take 2 >er shrpes on partition amongst themselves, grandson^ great-grandsons, 
24 [.s. 32], 35 [s. 43 (1-3)]. 

will, whether revoked by subsequent birth of son, 455 [s. 373]" 

Son-in-law — 

as a stndhana heir, Mithila, 150 fs. 153], 


Son’s daugbter— 


as an heir, under Act 2 of 1929, 44 fs. 43 (13A)]. 

before the Act, in Bombay, 72 [s. 56], 
before the Act, in Madias, 72 [s. 56], 

■ wliotiier taken absolute or limited estate, 44 [s. 

161 [s. 170J. 


^3 (I3A)], 159 [s. 168], 


Son’s daughter’s daughter’s son — 

as a bandhu, Mitakshara, 66 [s. 54 (1-4)]. 


Son’s daughter’s son — 

as a bandhu, Mitakshara, 66 [s. 54 (T-1)], 
as a sapinda, Da 3 'abhaga, 96 [s. 88 (25)]. 


Son’s daughter’s son’s son — 

as a bandhu, Mitakshara, 66 [s. 54 (1-4)]. 


Son’s sons— 

as heirs to their grandfather, Mit.. 35 [s. 43 (1-3)], 82 [s. 72 ( l-6>] ’ > 

Day., 95 [s. 88 (1-3)]. 

doctrine of representation as exemplified by, 21 [s. 
whether take as coparceners, joint tenants, or as tenant®'^‘®°™“^°"> 
whether take per stirpes or per capita, 24 [s. 32]. 
as sfcridhana heirs — 

Dayabhaga, ]52 [s. 155]. 153 fs. 157]. 

Mayukha, 143 [s. 150], 143 [s. 151]. 

Mitakshara, 140 fs. 147 (2)J. ^ 

whether take as tenaiits-in-cominon or as joint tenants, 
whether take per stirpes or per capita, 24 [s, 32]. 
debts, liabilitj’’ for grandfather^s, 347-3S5 [ss. 290-298], 
maintenance of, 506 [s. 547], 
partition, rights on, 393 fs. 307]. 



.742 


INDEX. 


Son’s son’s daughter's son — 

as a b 2 indhu. Mitaksbara, 66 [s. 54 (1-4)] ; Dayabhaga, 96 [s, 88 (26)]. 

Son's son’s sons — 

as beirs to their great grandfather, Mit., 35 [s. 43 (1-3)], 82 [^. 72 (1-6)] ; May., 87 
[s. 77 (3)] ; Day., 95 [s. 88 (1-3)]. 
doctrine of representation, 21 [s. 29]. 

whether take as coparceners, joint tenants, or as tcnants-in-common, 23 [s. 31]. 
whether take per stirpes or per capita, 24 [e. 32]. 
as stridhana heirs — 

Dayabhaga, 152 [s. 155]. 

Mayukha, 145(6. 151 (II)]. 
partition, rights on, 393 [s. 307J. 

Son’s widow — 

as an heir, in Bombay, 80 [s. 68]. 

whether takes a limited or an absolute estate in inherited property, 80 [s. 68 (iv)], 
165 [s. 174 (2)]. 

Sources of Hindu law— 9.15 [ss. 8-15], 
commentaries, 10 [s. 9]. 
custom, 15 [s. 15]. 
iudicial decisions, ID Is. 10]. 
smritis, 9 [s. 8]. 
srutis, 9 [a. 8]. 

Specific performance — 

contract by manager, of, 281 [s. 242], 

Spes successlonls — 

right of heir to succession, 22 [s. 30]. 

of reyersioners to succession, 166 [s. 175 (2)]. 
renunciation by heir, 205 [s. 192]. 

Spiritual benefit — 

doctrine of, 88-89 [ss. 79-80]. 

Sraddha — 

alienation of inherited property by widow for, 180 [s. 181A (2)]- 
parvana sraddha and right of inheritance, 89 [s. 80]. 

Srutl— 

as a source of Hindu law, 9 [s. 8], 

Stepdaughter — 

as a stridhana heir, Mitakshara, 141 [s. 147j. 

Stepmother — 

adoption, right to give in, 558 [s. 474]. 

as an heir to her stepson, Bombay, 81 [s. 68], 84 [s. 72 (27)]. 
whether takes a limited estate, 80 [s. 68 (IV)]. 



INDEX. 


74 ' 


Sudras— conW. 

Kayasthas, 668 [b. 628]. 

LingayatB are Sudrae, 6 [a. 6]. 
maintenance, 667 [a. 643]. 

Marathas of Bombay, 664 [s. 630], 
marriage, 519 [s. 428 (3)], 666-667 [aa. 638-641], 
aiiuloma, 667 [a. 640], 
identity of caate, 666 [s. 639], 
presumption as to form of, 667 [a. 641]. 
partition, 401 [s. 316], 667 [a. 642]. 

Tanjore Eajas, 664 [a. 629]. 
who are, 661 [a. 626]. 

Sulka — 

a kind of stridiana, 109 [e. 113 (2)], 125 [a. 126], 519 [a. 428 (2)]. 
meaning of, according to — 

Dayafahaga school, 161 [a. 154]. 

Madras, school (Smriti Chandrika), 147 [a. 152 (2)]. 

Mayukha, 143 [a. 150]. 

Mitakshara, 140 [s. 147]. 

Mithila school, 149 [s. 153]. 
succession to, 139 [s. 146]. 

Sunni Borabs of Gujerat— 

how far governed by Hindu law in matters of succession and inheritance, 633 [s. 582]. 

Surety — 

son’s liability for debts of father as surety, 382 [s. 298 (5)]. 

Surrender — 

of estate by widow or other limited heir, 212 [s. 197]. 

Survivorship — 

as regards diflerent kinds of property — 

(1) coparcenary property — 

among coparceners, Dayabhaga, 340 [a. 281]. 

Mitakshara, 255 [s. 229]. 

(2) property inherited from males — 
among co- widows, 39 [s. 43 (4)]. 

daughter, 41 [s. 43 (5)] ; Bom., 41 [s. 43 (5)], 163 [a. 171]. 
grandsons by a daughter, Mitakshara, 245 [s. 223 (2)]. 
legitimate and illegitimate sons of Sudras, Mitakshara, 36 [s. 43]. 
sons, grandsons and great grandsons, Mitakshara, 265 [s. 229], 

(3) property given or bequeathed to two or more persous — 
may pass by survivorship, 482 [s, 400]. 

(4) stridhana — 

no survivorship among stridhana heirs, 155 [s. 169]. 

Cutchi Memons. 630 [a. 582 (2)]. 
disability, 105 [s. 106]. 

extinction of right of, 265 [a. 229], 407 [a. 322 (2) (ii)]. 

insolvency of coparcenary and survivorship, 255 [a. 229 (iii) ], 317 [a. 266]. 

Khojas, 630 [s. 582 (2) J. 

Native Christians, 7 [s 7 (21 ]. 



748 


INDEX. 


Survivorship— eoniii. ’ 

right of survivorship takes precedence over — 

claims of creditors in certain cases, 345 [s. 289], 
of devisees, 449 [a. 368 (2) (ii)J. 
of donees, 303 [s. 258]. 

unobstructed heritage devolves by survivorship, 240 [s. 218 (2)]. 

Tables — 

of sapindas and samanodakas, llitakshara, 34. 
showing order of succession among bandhus, 70A. 

Tenants-ln-common — 

joint donees and devisees. 482 fs. 400]. 
stridhana heirs whether inherit as, 155 [s. 159]. 
when heirs take as, on succession to males, 23 [s. 31]. 

Torts — 

son’s liability for father’s, 205 [s. 234 <1) (iv)]. 

Transfer of Property Act — 

and benami transaction, 651 [s. 607]. 
endowments, 492 [s. 407]. 
gifts, 442 [s. 358 (2)]. 
maintenance, 622 [s. 509]. 
rule of damdupat, 643 [s. 596]. 

Trust — 

endowments, trustees whether necessary for creation, of, 402 [s. 407 (2)]. 

Hindu law, trusts whether recognised by, 446 [s. 366], 470 [s. 391]. 
inheritance, course of, whether can bo altered by interposition of trustees, 447 
[8. 366 (2)]. 

Trust Act 2 of 1882 whether applicable to endowments, 492 [s. 407]. 

Unchastlty — 

as affecting — 

adoption, 552 [s. 466]. 
maintenance of widow, 616 [.s. 661]. 

wife, 612 [s. 556]. • 

succession to males, SO [s. 68], 100 [s. 96]. 

to stridhana, 100 [s. 96], 134 [ s. 139]. 

Uncle — See Paternal uncle, i'latcrnal Uncle, 

Unobstructed heritage — See Obstructed heritage, 
what is, 240 [s. 218], 

not recognised by the Dayabhaga, 241 [s. 219]. 

Usage — See Custom, 

Valsyas — 

one of the four Hindu castes, 1 [s. 1] 

Vanaprastha of Hermit — 

succession to, Mit., 74 [s. 58]. 

Vljnaneswara — ^ 

Mitakshara, author of, 11 [s. 11 (3)1. 
stridhana according to, 113 [s. 115].
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